For those who are well-satisfied with the current situation, whereby judges create new laws to match their own progressive-leftist perspective, there is a dark cloud hanging over their heads. It is the provision in the Charter called the “Notwithstanding Clause” or “Section 33” that permits Parliament or a provincial legislature to declare that an Act of Parliament or a provincial legislature shall operate, notwithstanding provisions in the Charter. The declaration is effective for a period of up to five years and may be renewed. One of the practical effects of s. 33 is to prevent a court from considering whether the legislation violates the Charter. It does not, however, prevent legislation from being challenged on other grounds, such as the violation of the Canadian Bill of Rights, Human Rights Codes etc.
To progressives, the application of s. 33 interrupts the smooth operation of “justice”—as perceived by them (and the mainstream media), which is achieved by using the judiciary to bypass Parliament and/or the legislatures to more easily enact laws and policies according to their own perspective.
As a result, progressives despise the Notwithstanding Clause. Whenever a provincial premier, on rare occasions, has invoked the Notwithstanding Clause, progressives have raised strong objections to its use, demanding that it be withdrawn. Progressives invariably argue that the clause is objectionable because it removes “constitutional rights” of Canadians set out in the Charter. This argument ignores the fact that the courts have, many times, ignored the fundamental rights clearly written into the Charter, in order to provide progressive outcomes never intended by Parliament.
Amending the Constitution
Short of revolution, there are two basic ways to amend a constitution: political and judicial. Canada’s constitutional history has a long acquaintance with both methods.
Prior to the Charter, our constitution, the British North American Act (BNA Act) of 1867, was amended (with a few exceptions) by an act of Parliament or an Order-in-Council (a decision of the cabinet) to formally request the British Parliament to amend the constitution. This request was required because the BNA Act was simply a piece of legislation passed by the British Government in 1867. Such requests to the British Parliament have occurred 23 times in order to adjust to the realities of a growing country. Prime Minister Pierre Trudeau, however, believed that this procedure itself was offensive, i.e., requiring the Parliament of the United Kingdom to amend our Constitution. It implied that Canada was still a colony of the British Empire. He, therefore, included a new amending formula in the 1982 Charter, which required the consent of the House of Commons and the Senate, plus seven of the provinces consisting of 50% the population. This amending formula, however, is not easy to achieve, deliberately so since it was believed this difficulty was necessary to provide stability to the country. Also, Trudeau did not want his vision of the Charter to be tampered with by future generations.
A second method of constitutional amendment is also well known to Canadians. With the advent of the Charter of Rights and Freedoms, courts have now become increasingly activist and have rewritten Canada’s Constitution under the guise of interpreting the Charter. As the previous article, Harms Caused by Decisions of the Supreme Court of Canada, clearly shows, the Supreme Court has seriously rewritten Canada’s Constitution by defining and inventing constitutional rights to suit its leftist, progressive agenda. In doing so, the court is plainly usurping the obligation and authority of Parliament or a provincial legislature to enact laws on behalf of those who have given their consent to be governed by those legislatures. This judicial usurpation destroys the law’s legitimacy and ultimately the legitimacy of the state.
The Notwithstanding Clause: A Much Needed Brake on Judicial Power
The Notwithstanding Clause prevents the Charter’s application to specific legislation. This limits the court’s ability to strike down such legislation on “constitutional grounds”. As such, the Notwithstanding Clause is the only brake on an activist court determined to change Canada into something desired by its own woke and warped progressive ideology. In short, it is only Parliament and the provincial legislatures that can bring the necessary discipline to the courts in order to return them to the law, by invoking the Notwithstanding Clause.
Progressives forget that Canada’s constitutional system includes checks and balances between the Executive, Legislative, and Judicial branches of government. As such, the Notwithstanding Clause is a legitimate check against judicial tyranny and decisions that lack any accountability or semblance of popular consent.
It is time that Parliament and the provincial legislatures start using s. 33 to effect a saner, safer, and more democratic polity. Canadians require and deserve the Notwithstanding Clause to protect them from the intent of judges to push their own personal values onto Canadian life.