What was built as a safety valve in the Charter of Rights and Freedoms — an instrument of last resort — has become just one more arrow in the populist quiver. But this one has a poison tip.
Since its inception in 1982, the notwithstanding clause has been used sparingly, most notably in Quebec to assert the primacy of Frenchlanguage rights. The newly elected Coalition Avenir Québec (CAQ) has signalled its intention to use it again, this time in a clumsy sop to religious neutrality.
Section 33 of the Charter allows federal, provincial and territorial governments to enact legislative agendas, notwithstanding the objections of the courts, for up to five years. The clause was meant to be used thoughtfully, and sparingly. Canadians do not take their fundamental rights and freedoms lightly.
Then came Ontario premier Doug Ford’s beef-witted crusade to slash Toronto city council in the middle of an election. When a court ruled it violated the freedom of expression of both candidates and voters, Ford whipped out Section 33 and a hamfisted promise to use it again, if “unelected” judges stood in the way of his mandate.
The move was condemned by architects of the notwithstanding clause, including former prime minister Jean Chrétien, retired Ontario chief justice Roy McMurtry and former Saskatchewan premier Roy Romanow. “It was not designed to be used by governments as a convenience or as a means to circumvent proper process,” they wrote in a joint statement.
But the architects did not anticipate how a rise in populism would upend the norms of measured governance. Therein lies their greatest failure, and the Charter’s greatest weakness. In a perversely circular loophole, the Charter itself can be wielded to diminish the rights and freedoms of