OPINION: It’s time to banish the notwithstanding clause, the slow killer of Canada’s rule of law
By Jeffery B. Meyers, for The Conversation
I have written before that the far-right populist nationalism of the sort that fuelled the events of Jan. 6, 2021 in the United States and the so-called “freedom convoy” of February 2022 in Canada are not outlier events.
We live in a period in which the validity of constitutional norms and democratic consensus can no longer be presumed.
In the U.S., we’re watching a former and possible future president try to avoid criminal liability and win back his old office while ducking civil and regulatory liability at the same time.
Donald Trump as a president was anathema to the rule of law but inspired his followers. NATO allies like Italy, Hungary, Turkey and now Slovakia have far-right governments that emulate the Trumpist model and traffic in conspiracy theories.
Poilievre stokes outrage
Canada is part of the mix too. Pierre Poilievre, the current opposition leader who’s vying to become prime minister, famously appeared with freedom convoy leaders. He peddles conspiracies about the World Economic Forum and the “great reset,” code for an alleged plot by globalist elites to impose a new socialist order on the unknowing masses.
In increasingly obvious ways, he brings the cultural politics of America’s Christian nationalist far right to Canada. The outrage on trans kids, pronouns in public schools and the cooked-up theory of “parental rights” is only the latest iteration.
Not surprisingly, mainstream media outlets in the U.S. have reported on Poilievre’s ascent as a sign that American far-right populism and alt-right culture is plainly seeping over the northern border. However, if elected, a Poilievre government could not rely on the institutional supports available to a President Trump.
For instance, his government would not inherit a U.S.-style Supreme Court dominated by conservative judges prepared to turn the clock back on social progress. It would take decades of concerted effort by successive ultra-right conservative governments to transform Canadian courts — and even then it might not work as it has in the U.S.
As much as he might try, a Prime Minister Poilievre would similarly be unable to rally rural voters around gun rights in the same way as Republican presidents because Canada does not have an equivalent to the Second Amendment.
Weaponizing Section 33
However, if Poilievre or some other future Canadian leader wished to break with past tradition and takes steps toward a more authoritarian society, they could do so surprisingly easily using Section 33 or the “notwithstanding clause” of the Canadian Charter of Rights and Freedoms
Section 33 lives within the Constitution itself and can short-circuit social progress and shield legislation from constitutional review. Expanded usage of Section 33 is becoming increasingly normalized at the provincial level — Saskatchewan’s Scott Moe is vowing to use it to cement its new policy that all youth under the age of 16 will have to get parental consent to use their chosen name and pronouns at school.
It could one day be used routinely at the federal level as well.
When asked to comment directly on any actual or potential uses of the notwithstanding clause, Poilievre won’t weigh in. However, he has a history playing politics with Section 33, and has suggested amending the Criminal Code, particularly on sensitive criminal justice matters like parole eligibility.
There’s also the possibility Poilievre could openly encourage the notwithstanding clause’s use at the provincial level as a matter of “provincial rights,” as he recently has on the topic of gender pronouns.
Thwarts other rights
Section 33 is called the “notwithstanding clause” because it permits the federal Parliament or provincial legislatures to make laws “notwithstanding” the fundamental rights guaranteed by Sections 2 and 7-15 of the Charter.
Its increasingly routine use is alarming because these sections contain protections that guarantee the rule of law. Section 2, for example, contains a four-part guarantee of:
- Freedom of conscience and religion;
- Freedom of thought, belief, opinion and expression, including freedom of the press;
- Freedom of peaceful assembly;
- Freedom of association.
Sections 7 to 15 cover an array of fundamental rights. They include:
— The rights to life, liberty and security of the person;
— The right against unreasonable search and seizure;
— The right against arbitrary arrest and detention;
— The right to legal counsel and bail upon arrest and detention;
— The right to a fair trial and the presumption of innocence;
— The right against cruel and unusual punishment;
— The right to an interpreter in a criminal trial and;
— The guarantee of equality.
Recent efforts at the provincial level hint at the ways Section 33 can be used to attack Section 2 and Section 15 rights in particular. This poses a grave threat to Canada’s social contract.
If Poilievre’s Conservatives win the next federal election, will it result in the notwithstanding clause being employed even more often to avoid Charter reviews of contentious legislation?
Will it be used by a government led by a prime minister inclined to break convention — or perhaps, even more predictably, to encourage Conservative provincial premiers to use the clause to roll back the clock on human rights victories of the past?
Along the same path as the U.S.?
If that happens, it might lead Canada down a road similar to the one the U.S. is currently on.
It’s a path that respected international human rights organization, Freedom House, describes as a “dramatic shift in Americans’ perceptions of acceptable political behaviour over the past several years, and an increased willingness to sacrifice democratic institutions for the sake of partisan gain.”
The only solution to the ominous threats posed by Section 33 is to amend Canada’s Constitution. While that wouldn’t require the unanimity of all provincial legislatures and Parliament, it would trigger the general amending formula under Section 38 of the Charter.
The formula requires the assent of Parliament and “resolutions of the legislative assemblies of at least two-thirds of the provinces that have … at least fifty per cent of the population of all the provinces.”
Realistically, many provinces, including populous ones like Québec and Ontario, would never give up the power to override the Charter now guaranteed to them by Section 33 voluntarily. To actually amend the Constitution would require both Ontario and Québec to do just that — and they would need some incentive from the public.
That means it’s now up to voters to begin demanding that premiers stop using the nothwithstanding clause. Younger voters should also consider whether they want to inherit a Constitution that can be so easily shirked.
If they don’t, they should demand that their provincial and federal politicians consider a needed constitutional amendment. The failure to act now could be disastrous for the future.
This article was first published in The Conversation.
About the author: Jeffrey B. Meyers is an instructor in Legal Studies and Criminology at Kwantlen Polytechnic University.