A Big Idea at Election Time To Safeguard the Canadian Charter of Rights and Freedoms

  • September 22, 2021
  • Professor Errol Mendes

There were media reports that the 2021 federal election needed a big new idea to get Canadians more enthused about the election, since so many are not. On social media and on the Ipolitics online journal of the Toronto Star, I proposed a big idea that could have galvanized Canadians.

One or more of the parties in the election could have promised to start a constitutional-amendment process to require the following: Before they can override the rights enshrined in the Canadian Charter of Rights and Freedoms by passing a notwithstanding law under Section 33 of the Charter, federal and provincial governments must obtain a super-majority (at least two-thirds) of elected members in their respective legislatures.

The rights and freedoms that couldn't be overridden without a super-majority — because they shouldn't be at the mercy of a single leader or party who might command only a small majority in the legislature — are those in Section 2 and Sections 7 to 15 of the charter: the fundamental freedoms of expression, association, and assembly; the right to life, liberty, and security of the person; and the cherished guarantee of equality to the most vulnerable in our society.

We've seen how the notwithstanding provision has been abused by the Ontario government. Premier Doug Ford threatened to use it to shrink city council in the middle of the Toronto municipal elections. More recently, he used it to limit election spending by third-party groups, which was mainly intended to shield him from attacks by unions. Provincial premiers and leaders in the Yukon, Saskatchewan, Alberta, and New Brunswick have either used it or threatened to use it, as well.

The notwithstanding law has been used by successive governments in Quebec, both separatists and federalists, ostensibly to protect the French language, and, more recently, to prohibit the wearing of religious symbols by public officials.

While it's likely such use of the notwithstanding clause would have a super-majority in its favour in Quebec, the debates in the Quebec National Assembly would demonstrate the dangers of collective rights and fears overriding fundamental rights of minorities.

In the Conservative party's platform in this election, there's a provision that implies that, if the party gains power, it could almost immediately use the clause to increase the sentencing for those accused of multiple murders, such as the one imposed by the Quebec Court of Appeal against the Quebec-mosque murderer. 

The father of the current prime minister abhorred the proposed override clause in Section 33 of the charter, but was threatened by some of the provincial premiers that they would not agree to his cherished charter to be part of the 1982 repatriated Constitution. His son, and perhaps other party leaders, now have a chance to begin a dialogue to propose a constitutional amendment that needs the consent of at least seven provinces and 50 per cent of the population.

The proposed amendment would require at least a two-thirds majority vote in the federal and provincial legislatures to override the most fundamental rights in the charter under Section 33. This is what former prime minister Pierre Trudeau should have insisted in the final version of Section 33 become, based on the most fundamental value of all democratic societies: that demolishing fundamental rights should never be easily done.

While it might take years to get the required provincial consent to put democratic constraints on the use of the notwithstanding provisions in Section 33 of the charter, the past, present, and future aspirations of Canadians who have sung, or will sing, the praises of a country strong and free should demand the start of this profound constitutional dialogue.

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