A Constitutional Crisis in the Making

The Notwithstanding Clause, or Section 33, of the Canadian Charter of Rights and Freedoms (The Canadian Constitution) allows our elected officials to ignore our charter rights and enact laws that are in contravention of our inherent rights as Canadian citizens. If that doesn't concern you, read on.

Provincial governments have used Section 33 a total of 26 times since it was implemented. In all cases the clause was used to circumvent charter rights, or cases where the Supreme Court has declared a law as unconstitutional. This clause, when enacted, means that there is no legal recourse and the rights granted under the charter are suspended for a period of 5 years with a review mandated at that time. The clause can then be re-instated for another 5 years, so on and so forth.

That is a problem.

During COVID we were all subject to unheard of government interference in the day to day live of Canadians and there were significant questions raised about how our charter rights were impacted. The courts are still dealing with lawsuits from across the country attempting to reconcile all of the challenges that the pandemic presented. The single largest complaint from across the country was the infringement of our rights and freedoms as guaranteed by our the charter. Those issues culminated in national protests, the truckers convoy and occupation of Ottawa, and other more long lasting issues that have highlighted how delicate our freedoms actually are. Canadians were outraged.

So then I have to ask the question, why are we so OK with governments using the very document meant to protect our rights to supress them? When the supreme court of Canada rules that our constitutional rights are infringed by a law, they can force the government to repeal or amend the law to align with our rights as protected. The courts are there for that exact reason, to counterbalance government over reach into areas that are protected by our Charter of Fights and Freedoms. Section 33 strips the courts of their ability to defend our rights, and we are the only democracy on earth with such an "out" built into our constitution.

Every time that clause is used it further erodes our individual rights as citizens of this great country. There is absolutely no other result other than the suppression of rights when clause 33 is used.

Traditionally the clause has been used by provinces that have tried to block federal or constitutional rights that do not align with political view points. The provinces that have used it are (in the order of times used) Quebec, Ontario, and Alberta. In Quebec it has been mainly used to block dual language laws - but has also been used to curb religious, and other, freedoms. In Ontario the use has been more recent and was used to change some voting rights laws, municipal laws, and others. Alberta has used it once in the early 2000's to attempt to force the federal government to maintain marriage as being between a man and a woman.

All of that stuff should cause us concern as citizens of Canada, because it is far too easy to ignore our rights under the constitution if the government of the day feels that they hinder their legislative agenda.

Most recently Pierre Poilievre has stated that if elected he would use the clause to override decisions made by the supreme court that declared several justice laws as unconstitutional. Laws that not only infringed on the rights of Canadians to a fair a fulsome defense, but also laws that targeted specific segments of our society based on their race, religion, and country of origin. This would mark the first time the federal government ever used Section 33 to ignore our constitutional rights, and it should worry all of us - regardless of who the party or politician is. The last thing we need is the use of Section 33 to be normalised by the Federal Government triggering it as that act would all but give every provincial government a defacto "blessing" to use it, and would grant permission for future federal governments to use it.

Imagine that, a legal method for our elected officials to easily, with little to no fuss, strip rights guaranteed by our Charter of Rights and Freedoms. How does that give our charter any actual value in our lives? It doesn't.

Imagine if the USA Constitution had such a clause in it!

Make no mistake, Clause 33 allows governments to over-ride any and ALL of your rights under the charter. Today it might be something that most people do not mind, but where is the line?

Under Charter 33 government can strip our rights to freedom of expression, freedom of association, freedom of movement, our right to marry, to travel, to work, and any other protection supposedly guaranteed by the Charter of Rights and Freedoms.

I have heard people say "I trust that they will do the right thing" - really? We trust our politicians so much that we are willing to give them blanket authority to suspend our rights for a minimum of 5 years? Think about it for a moment... would you give anyone else in your life the power to control you and take away your right to self determination for 5 years, or even the rest of your life?

That is exactly what Section 33 is and does. It erodes our rights, grants government permission to do so, and there is nothing we can do about it. Heck, government - with a strong majority, could change our election laws and simply use Section 33 to ensure that it could not be repealed.

Canada is a democracy, and that means that we the citizens of this country get to decide. We elect individuals to represent our interests, and if we do not like the government we get to vote them out. We empower the courts and our justice system to keep government (and all of us) in check. They are the one and only stop gap we have in this country to assure that our rights are protected at all times against government overreach.

With Section 33 in play it is a lot like trusting a burglar with your house keys.

While the clause in of itself is not the issue, what is is the normalisation of its use and that we now have federal politicians openly stating that they will use it to override decisions of the Supreme Court that they do not agree with. That is a problem.

As of this article I do not like any of the choices presented to Canadians when it comes to politics. I do not think, nor believe, that any of them really have the nations best interests at heart, they are all too busy pandering to special interest groups and have forgotten that the silent majority simply want to be able to live our lives in peace. We want to have the ability to self determine, we want to have freedoms and we want to be equal with our fellow Canadians.

When I wake up in the morning, like 95% of Canadians, I start my day. Have breakfast, get dressed, and go to work. I pay my taxes, I spend time with friends and family, and I stress all the same things that everyone else does and I have the same concerns about the future, in particular what we are leaving for future generations.

I care about how much groceries cost, housing, and the growing homeless problems facing a nation that should have none of these issues. We are one of the wealthiest countries on earth, people should not be sleeping in refugee camps because they have nowhere else to go (homeless encampments are referred to as this because it sounds better, but lets be honest - they are refugee camps).

I also care that my freedoms are sacrosanct and not for easy dissemination and reduction. It seems that in the broader Canadian society I am an outlier and that concerns me more than most things right now.