Notwithstanding human rights?
One of the many things about Canadian political life guaranteed to make one feel out of step with the times is the idea that Section 33 of the Charter of Rights and Freedoms, the notwithstanding clause, was supposed to be an absolute last resort. After all, overriding rights guaranteed in the Charter should never be done casually thing . . . or so we thought.
Perhaps, as one analyst recently noted on CBC Radio, with those directly connected to the creation and implementation of the Charter are aging or leaving us completely, we are simply forgetting why the notwithstanding clause exists and what it was — and wasn’t — supposed to do.
As the Charter was being hammered out in 1982, some provincial premiers were uneasy with the idea of judges determining the fate of their legislation. The notwithstanding clause was a way to answer their concerns, allowing for the possibility of exempting federal, provincial or territorial legislation from the Charter where that was seen as essential. Admittedly, it fundamentally weakened our constitution – and now we’re seeing the unfortunate effects.
Somehow, in the span of 40-odd years, we’ve gone from Section 33 being something whose use is weighed carefully and with considerable thought to the implications, to being a handy method for ramming through legislation without regard to the rights it sidesteps.
Why does this matter to us here in rural Ontario? Well, when provincial governments invoke the notwithstanding clause to send unionized public sector workers back to the job, that leaves many of us and our neighbours with no recourse when it comes to negotiating better contracts.
When the Quebec government uses the clause to ban public servants from wearing any symbols of their faith, it denies observant individuals the basic rights the Charter was supposed to protect. When Ontario Premier Doug Ford uses it to interfere with Toronto city council, what’s to stop him from doing so on some other, equally pointless whim?
When the Alberta government goes the notwithstanding route to dictate what medical treatment is right for trans kids, what’s to say it won’t start meddling in other areas where it has no expertise? When the federal Opposition leader vows to use the clause to correct what he sees as unacceptable rulings, how can we be sure legal wisdom won’t be overruled by populist pandering?
Some politicians seem to think they can use Section 33 to avoid having difficult conversations or accepting a decision by people who know more than they do. The notwithstanding clause is, and never should be, a means for those in power to get their own way when the courts have suggested that way isn’t a good one for Canada. Just because politicians are elected necessarily doesn’t make them right, or even smart.
We should be wary any time the notwithstanding clause is offered as an easy solution.
“When the Quebec government uses the clause to ban public servants from wearing any symbols of their faith, it denies observant individuals the basic rights the Charter was supposed to protect.”
Just thought you should know, Quebec is not signatory to the Charter. And beneath all this pulsing irony lies a cold legal fact: Canada’s Charter guarantees freedom of religion. Quebec never signed the Constitution, so its secularism law exists in a constitutional twilight, a kind of juridical offshore zone where ideology can slip past customs.
The issue governments have that invoke the notwithstanding clause is what they describe as an increasingly activist judiciary. I think our supreme court decisions are still pretty pristine but I agree many of the decisions of our lower courts leave a lot to be desired as do a few SCC rulings. Like health care, justice in Canada appears to be spiralling out of control. It’s as if “the falcon cannot hear the falconer” (W. Yeats) as our systems are rapidly digitized and the unqualified are appointed to hear cases and perform duties they are simply not fit to do.
I am personally uncomfortable with the way Premier Smith has used the notwithstanding clause to interfere with the treatment trans kids can access but her decision was driven by a majority of constituents uncomfortable with medical and surgical solutions to gender dissatisfaction. Majorities are often wrong and when science changes rapidly, it can take time for the majority to catch up. Most people my age still have difficulty understanding the difference between a trans man and a trans woman. It’s just a lot to get their heads around, they say.
Canada is at a crossroads culturally. We will become more free or more oppressed and by whom? By our appointed judges or our elected offiials. Bit of a rock and a hard place, eh?