Not standing with Canadian Charter Notwithstanding

Politics & Elections
1

I knew very little about The Canadian Charter of Rights and Freedoms. Like most constitutions, it is the supreme law of Canada. Having learned more about it recently, I think it encompasses Canadian values and places reasonable limits on them too. I understand the desire of the courts to stay focused, but applaud recent trends to incorporate Charter values more widely. I’d like to see the spirit of these laws applied everywhere in Canada.

But Section 33? The Notwithstanding Clause? Never mind it was included as a sop to Western provinces. The first recent use of it by the Quebec nation to ban religious items on secular workplaces concerned me. A weighing of the modest benefit of further separating church and state seemed undermined by those actually affected. The motivation did not seem very inclusive. And those costs seemed rather high and justified almost purely in political terms. Quebec’s more recent demand for unilateral amendments may have merit. But at a minimum needs to be studied in detail by constitutional lawyers to determine the actual likely effects and not be a political fait accompli - and I think Canadians should speak French and am relatively pro-Quebec.

Then Ontario uses it to fight a fairly minor change on election funding. Will this finally open the floodgates to allow the law to be abrogated at the first sign of inconvenience? In a mature democracy, the executive and legislative branches are not one and the same.

2

And I do support limits on pre-election advocacy. This is the wrong way for a government to challenge them. And too trivial and change to justify using the section which should not really be there except the levels of government trust each other so little.

3

To clarify Dr. P.'s excellent post, the Canadian constitution, adopted in 1981 IIRC includes a clause that allows a province to override the charter of rights (roughly similar to the US bill of rights) by simply including a “notwithstanding” clause in any bill. This was included, as said, to get the agreement of the western provinces, but has been used exclusively by Quebec. For a while the Parti Quebecois government included it in every piece of legislation, then that stopped. Now they passed this horror that bans everybody in the civil service (this includes all school teachers, all employees of the provincially subsidized day care system) from wearing “religious symbols”. There is also a grandfather clause for current employees. What’s a religious symbol? The only one they actually care about is the hijab. Unfortunately, a large number of those day-care workers are hijab wearing women. I am not sure what the current interpretation is, but as originally proposed, a small cross was declared not to be religious symbol but rather a token of Quebec history.

4

So, what do you want to discuss? Whether there should be a notwithstanding clause in the Canadian constitution? I think there should, in order for the provinces to be able to adapt legislation to their own reality, but even if you disagree I don’t think you’d want to try to remove it now. Whether Quebec’s bill 21 about religious symbols for some public workers is a good idea? I agree with parts of it, some other parts I’m less convinced but I think it answers a legitimate need in a liberal democratic society even while formally going against the Canadian constitution (which is what the notwithstanding clause was made to permit). Discussing this, of course, would probably need its own thread.

As for Quebec’s bill 96 about language, it was written by cabinet minister Simon Jolin-Barrette (a lawyer) with help from former cabinet minister Benoît Pelletier (a professor of constitutional law at the University of Ottawa), so there’s been argument by some constitutional lawyers in favour of it. Other constitutional lawyers may disagree with their interpretation, but there has been thought spent on the idea.

As for your idea that “Canadians should speak French”, what do you mean? Which Canadians? How well? And so on. Personally, I disagree as a matter of policy (though if Canadians want to personally learn French, then more power to them), and I in fact believe that the Trudeauist (father) language policy for Canada caused important damage to Canada and especially to the French language’s place in it. But once again, that could be a whole other thread.

5

Okay, just threw the topic out there but if you want direction, I will help.

  1. The Notwithstanding Clause basically allows provinces to “cross their fingers” and do whatever they want. There are no immediate limitations - except it was seen as terrible when Quebec first did this and there is less noise now it is being done for things which are kind of hard to justify. There are softer limitations in terms of reputation, repeal, elections and media. Ideally, what limits should be on The Notwithstanding Clause (given Provincial Ministers could not likely agree on a dinner menu, so amendment is unlikely)…

  2. The Charter applies to government agencies and quasi-agencies. It has a role in things normally undertaken by government. It affects things like municipal bodies, policing, military, hospitals, the civil service, regulators and universities - though not necessarily in day-to-day affairs or to replace everyday decisions. Should enumerated rights apply more or less widely?

  3. The Consitution is always subject to “reasonable limits” and courts often grant it has been violated but that this is reasonable in light of the specific circumstances and therefore by Section 1. Since this is generally a legal question, actions may be hard to predict. The US (and many other) Constitution seems more specific. Is there an equivalent to the Notwithstanding Clause it an overriding “Just Be Reasonable And Act In Good Faith” section, in practice, given previous legal cases?

Since Canadian politics is already esoteric, this thread may be legitimately used to discuss anything related to any Constitution.

6

It’s funny - the notwithstanding clause was supposedly put in for the western provinces, but there was a strong backlash against it in the west, at least among conservatives.

The point to a constitution/bill of rights is to lay out the relationship between the government and the citizenry, and to proclaim the things that government must not do and the rights of the people that must not be infringed, The ‘notwithstanding’ clause essentially makes the whole thing conditional on the whim of provincial governments, which makes it an extremely weak protector of rights.

7

It is a strong protector until it isn’t.

(French is perhaps another thread. I think all children should be encouraged to become fluent in French. I think a little basic French should be mandatory.)

8

Despite their supposed backlash, conservative governments in Alberta and Saskatchewan have both happily used it twice to attempt to pass legislation. Only Saskatchewan’s first attempt actually got all the way through to enacted law, and ended up being unnecessary. Section 33 of the Canadian Charter of Rights and Freedoms - Wikipedia

I entirely agree that the notwithstanding clause should never have been included in the Constitution.

9

It seems Quebec is more aware of the ramifications than Trudeau. I like Justin. However, this proposal possibly needs more evaluation than a mere head nod and a thumbs up. Quebec’s constitutional lawyers who drafted it are one side of the situation. Even if Trudeau has more to lose than to gain from this - which is evident. The suggestion for further study, and what is more Canadian?, does not need to come from him.

10

I’m not sure how to comment here. Perhaps I can start with clearing up a few errors that have occurred in the discussion so far:

  1. The Charter came into effect on April 17, 1982; not 1981.

  2. The Charter is only one of our Constitutional documents; it is not the only one. Another would be the Constitution itself; formerly known as the British North America Act 1867, which formally describes how our federal and provincial legislatures are constituted, and describes the separation of powers between the federal government and the provinces. In this way, Canada’s Constitution is much like that of the United States, with its Constitution and Bill of Rights; that is, two constitutional documents in one.

  3. The Notwithstanding Clause is limited, in that it can only apply to Charter s. 2 (the Fundamental Freedoms), and ss. 7 through 15 (legal rights and the equality clause). No province can use it to prevent you from moving there to pursue a living (Charter s. 6), and the federal and provincial government cannot use it to prevent any Canadian citizen from voting in federal and provincial elections (Charter s. 3). So there are limitations on its use, as explained at Charter s. 33(1) (that is, the Notwithstanding Clause itself).

Like I said, I’m unsure exactly what the topic is here, but maybe my information will help Dr. P focus his question or concern. And perhaps @Northern_Piper and @Muffin will be by to help out also.

11

Why is the Notwithstanding Clause a good idea? What is it’s equivalent in other countries?

12

What’s even the point of a supreme law that the government can ignore at a whim? It turns the whole thing from law to mere guidelines.

13

I agree with this. In the areas in which the notwithstanding clause applies, the power it yields to the provinces is equivalent to any citizen having the power to disobey a law if he doesn’t like it. It essentially makes the applicable sections of the Charter mere guidelines rather than guaranteed protections.

Well, the US is the diametric opposite. Not only would they never tolerate a “notwithstanding” clause in their Constitution, they tend to have an absolutist interpretation of it even as it is. Now that I don’t agree with, but that’s how far they’ve taken absolutism. The very first sentence in the Charter of Rights and Freedoms carves out an exception where these guarantees are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. I think this is reasonable but even this would be anathema to the way the US Constitution is usually interpreted.

14

Just to let everyone in on the secret, since I don’t think anyone’s bothered to state this, it is NOW known simply as the Constitution Act 1982.

The Charter is a relatively small part of the Constitution in terms of length and complexity.

The U.S. Bill of Rights is in any number of ways intrepreted the same way. An American cannot literally say ANYTHING - there are laws making libel and slander torts, laws saying you can’t whip up an angry mob, stuff like that. An American can legally own a .38 but owning a machine gun is nearly impossible and owning a fully armed F-16 is thoroughly impossible. The freedom of association, usually assumed to be implicit in the freedom of assembly, doesn’t apply in some commercial situations, such as requiring businesses to abide by the Civil Rights Act. The reasonable-limitation concept is just sort of accepted.

15

It was a compromise to get the broadest possible acceptance of the new constitution. There were provincial governments that didn’t want the Charter at all.

16

Additional to the previous responses, it’s not “at a whim.” There is a political cost to be paid in invoking the notwithstanding clause. You’d better only be doing so for something that has pretty broad public support. Also, use of the notwithstanding clause comes with an automatic sunset clause, so you have to be prepared to invoke it over and over again.

So, you may well think these barriers are insufficient to protect basic rights from being trampled on (I certainly do), but they are barriers and they do limit governments. Plus without the notwithstanding clause there would probably be no Charter to begin with, so those rights it protects, to the extent it protects them, would in its absence instead enjoy only the protection afforded by the customs and conventions of Parliament. That again is not nothing, but it’s even less protection than the current situation.

17

As @Spoons commented, the Charter is not the constitution. It is part of the Constitution. Other parts of the Constitution establish democratically elected governments with powers limited by the Constitution.

I disagree with this dismissive approach to s. 33, for a few reasons.

First, the adoption of the clause has to be placed in context. Opposition to the Charter varied amongst the premiers, but the basic point is that it would be a fundamental change to the the Canadian constitutional system. Prior to the Charter, the judicial review power of the courts was largely limited to the division of powers between the federal and provincial governments. The courts repeatedly said that under that jurisdiction, they were not concerned with the merits of legislation, just whether it fell within federal or provincial jurisdiction. The Charter would change that, with unelected judges judging the merits of laws passed by the democratically elected governments. That was a fundamental change, and the premiers who opposed Trudeau were concerned with it.

And even with the more limited scope of judicial review under the division of powers, the decisions of the unelected judges could have serious consequences. For example, just a few years before the Patriation Debate, the Supreme Court had ruled in a pair of judgments that the provinces had limited powers to regulate their own natural resources, and to claim the resource revenue, because the Court held that the provincial laws in question intruded on federal jurisdiction. That pair of decisions helped to pave the way for the National Energy Policy, which was widely seen in the west as an attempt by Central Canada to claim the benefit of the West’s natural resources. It took a constitutional amendment to reverse that Supreme Court decision. Constitutional amendments are rare.

And now the Trudeau government was proposing a further expansion of the powers of the unelected courts, to overrule the policy choices of the democratically elected governments. And the federal government appoints the judges of the Supreme Court. Some of the premiers were wary of the proposal, and said that the proposal had to be thoroughly vetted, and have substantial provincial support

Instead, Trudeau was saying that if the Premiers didn’t agree, he would go to London and seek fundamental constitutional changes without the support of eight of the ten provinces.

The premiers strongly believed that approach was not consistent with the federal nature of the country, that the federal government was proposing significant constitutional changes, over the opposition of almost all the provinces.

Nor was it just the western premiers. (And, as an aside, even if the opposition did largely come from the west, why are you so dismissive? Are the western provinces not equal partners in Confederation? Are you saying that western political opinions don’t have legitimacy, and only Central Canada counts?)

Trudeau only had two premiers supporting his proposal: Davis of Ontario, and Hatfield of New Brunswick. All the other premiers opposed it, for a range of reasons, but largely focused on that basic question: should the power of the unelected judges be expanded, and the powers of the democratically elected governments be reduced, in matters of social policy?

And when the logjam broke, the three AGs who put the deal together were Chrertien for the feds, McMurtry for Ontario, and Romanow for Saskatchewan, working from a draft prepared by the Newfoundland delegation. It wasn’t just the western premiers. Trudeau didn’t like it, but his position was badly weakened that night when Davis of Ontario phoned him and told him that he thought it was a good deal, and that he would withdraw his support for unilateral changes by the federal government in Britain.

Trudeau reluctantly told Chretien to get a deal, provided it had the support of a strong majority of the provinces. Chretien worked through the night to do it. Lougheed, Blakeney and Davis were crucial to those discussions, because of their political alignments and relations with the other premiers. Peckford also played a significant role. By the end of the night Chretien had the deal, with the nine anglo premiers, but not Quebec, which is an entirely other issue. The lack of Quebec still echoes today.

Also, the deal wasn’t just the notwithstanding clause. There were changes to the provision for provinces to opt out of some future constitutional amendments, and to the education clause, with tweakings to other parts of the already well-developed draft of the Patriation package.

Overall, I think it’s pretty clear that if s. 33 had not been included in the Charter, there wouldn’t have been a constitutional accord in 1982, even the flawed one that didn’t include Quebec. If you say s. 33 shouldn’t have been included, then you are saying that no Charter is better than a Charter with s. 33.

This blanket statement is simply not an accurate summary of how democratically elected parliamentary systems in the Westminster system operate. They are much more nuanced than this statement suggests.

18

By the way, several posters have spoken about s. 33 as a provincial power. It is also a power open to the federal government to use, not just the provinces.

19

No. The British North America Act, 1867 was re-named the Constitution Act, 1867. The Constitution Act, 1982 is an entirely separate statute, containing the Charter, Indigenous rights, the amending formula, and the natural resource amendment.

20

Well, there’s two factors that need to be considered:

1 - Using the notwithstanding clause is tantamount to admitting that the law you want to pass does, actually, violate the Charter, but that you feel this violation is justifiable.

2- As mentioned above, there’s an automatic sunset clause, so it’s not a “one and done” issue. You need to continue to assert that the violation of the Charter is still needed, years after the initial law was passed.

A big part of this is the “The Constitution is not a suicide pact” problem. There are situations in which allowing unrestricted exercise of certain freedoms can cause serious problems for a country, that no sensible person actually wants.

Consider the last year of the pandemic. The governments in Canada have been passing a lot of laws and regulations limiting our freedom of movement and association, which a lot of people don’t like. But a majority of the population largely agrees that these limits are needed to limit the spread of COVID. So, what if the anti-maskers and anti-lockdown protestors had been able to convince a judge that these measures were in fact a violation of the Charter? Well, we could just stop doing all that, and allow the disease to spread unchecked, or we could invoke the Notwithstanding clause, and pass the laws that are needed.

After the sunset period has passed, any government of the day that tried to re-impose these limits without the justification of an ongoing pandemic would likely face a huge electoral backlash.

At least, that’s the theory. So far it seems to have worked, but the Doug Fords of the country seemed determined to push the limits on what is appropriate. This is why they all need to be voted out of office, regardless of your opinions on other issues.