The notwithstanding clause — what it is, why it was used and what happens next

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Ontario Premier Doug Ford's decision to invoke the notwithstanding clause for the second time has prompted a public debate that cuts right to the heart of the Constitution.

At the centre of that debate is whether the Charter of Rights and Freedoms can still be said to exist in practice when some premiers appear eager to normalize the use of the charter's Section 33, which allows governments to temporarily override other sections of that document.

The NDP opposition in Ontario, New Democrats in Ottawa and the federal Liberal government have all cried foul, saying that the use of the notwithstanding clause is trampling the rights of Canadians.

"Canadians themselves should be extremely worried about the increased commonality of provincial governments using the notwithstanding clause preemptively to suspend their fundamental rights and freedoms," Prime Minister Justin Trudeau said Friday.

"The Charter of Rights and Freedoms cannot become a suggestion. The outrage we're seeing across the country right now …  I think, is a moment for all Canadians to reflect."

Here's a look at the notwithstanding clause, how it came to be and how it's being used now. 

Watch: Trudeau spoke to Ford about use of notwithstanding clause

The notwithstanding clause, or Section 33 of the charter, gives parliaments in Canada the power to override certain portions of the charter for five-year terms when passing legislation.

The clause can only override certain sections of the charter — including Section 2 and sections 7 to 15, which deal with fundamental freedoms, legal rights and equality rights — but can't be used to override democratic rights. 

Once invoked, Section 33 prevents any judicial review of the legislation in question. After five years, the clause ceases to have any effect — unless it is re-enacted.

In the early 1980s, the Liberal government of Pierre Trudeau wanted Canada to have its own constitution with an entrenched bill of rights. But negotiations stalled over concerns that the proposed Charter of Rights would be too powerful. 

"There were a number of people, including several provincial premiers at the time, who were concerned that that would upset the balance of power between the federal and provincial governments and would put too much power in the hands of the courts," said Carissima Mathen, professor of law at the University of Ottawa.

"A number of premiers argued that there should be ... a sort of escape hatch from certain rights in the charter."