I consider the Supreme court as more dangerous than the "Notwithstanding Clause". They have consistently interpreted the Charter in weird and unhelpful ways based sometimes, on ridiculous hypotheticals.
I don't understand why media likes to brag about our supreme Court. They've shown that they're willing to read into the charter things that are not there, but only when the purpose aligns with specific (usually progressive) values. They already know what they want to decide then read into the charter the justification.
A significant chunk of the examples will be found in association with the concept of the Charter as a "living tree" - former CJ McLachlin was a great proponent. This concept effectively allows the SCC to read whatever they want into the Charter, if they think it's the way that it should "grow". A milestone case in 2004 held that "A large and liberal, or progressive, interpretation ensures the continued relevance and, indeed, legitimacy of Canada’s constituting document." While I agree entirely with the practical outcome of that decision (cited as 2004 SCC 79), I vehemently disagree with the concept of nine politically appointed people having the power to change the foundational legislation of a democratic country. I particularly take issue with the idea that our constitution is somehow less "legitimate" if judges are not allowed to read in that which they feel ought to be read in, in accordance with their own "large and liberal" interpretation.
If you navigate over to Canlii.org and type "charter" and "living tree" (both in quotes) into the search field, you will find around 300 examples.
Thanks Paige, we can disagree on whether living tree approach is preferable to the frozen concepts approach to interpreting the Constitution. Though of course, as I expect you know, that decision predates the Reference re same-sex marriage case by the better part of a century. So it would seem you are fighting a very old battle here.
It is indeed a very old battle. And it rages on - as evidenced from this article and many others which are published on an annual basis - because it is of such fundamental importance to our country.
I will also note, lest you misunderstand my perspective, that I am not a proponent of the "frozen in time" concept, nor am I opposed to broadening the protections provided under the Charter (I am actively in favour, actually). I think perhaps where we disagree is with regard to whether such broadening is appropriately carried out by political appointees who sit unchallenged for decades at a time.
I don't understand, how would elected MPs/MLAs be in a position to interpret legislation? They write it, and if in government may also use and enforce it, but not adjudicate its application. Are you contemplating an elected judiciary?
We could turn that around and argue, Why bother with Legislatures representing the commoners to draft, pass and enact legislation when the higher courts can do the legislative amendments to suit?
What I am saying is that, in circumstances in which legislation ought to "grow" in order to remain reflective of Canadian values, the the appropriate mechanism is via legislative amendment.
The Supreme Court ruled that sentencing mass killers, including terrorists, to whole-life sentences is cruel and unusual punishment. Life without parole is unconstitutional.
https://www.theglobeandmail.com/canada/article-supreme-court-canada-parole-law/ What's notable about the decision is that it casually dismisses the notion that the Canadian justice system should even be in the business of punishing wrongdoers. “In a legal system based on respect for rights and freedoms, the ‘eye for an eye’ principle does not apply,” it writes. Previously, in a 1996 decision, the Court upheld a lengthy sentence against a serial child rapist for the singular reason that proportionate jail terms were a great way for Canadians to condemn the “moral blameworthiness” of victimizing children. “Retribution is an accepted, and indeed important, principle of sentencing in our criminal law,” it read.
Supreme Court of Canada declared that the right to strike is constitutionally protected under the freedom of association in s. 2(d) of the Canadian Charter of Rights and Freedoms. The Supreme Court had previously ruled in 1987 that there was no constitutional right to strike since that right is a creation of legislation, involving a balance of competing interests in a field that has been recognized by the courts as requiring a specialized expertise.
Supreme Court of Canada won't hear unvaccinated woman's case for organ donation.
A series of recent Supreme Court decisions kneecapping bail and sentencing provisions has helped fuel a crisis of “catch and release” justice (R v. Antic). And, of course, Canada is now experiencing regular incidents of contentious assisted suicide cases — a regime whose existence is due entirely to Supreme Court order.
R v. Nur decided that the imposition of mandatory minimum sentences on gun criminals constituted “cruel and unusual punishment.” The decision was 6-3, with the dissenting judges writing that the whole decision hinged on a “marginally imaginable” scenario that stretched “the bounds of credulity.” “It is not a sound basis on which to nullify Parliament’s considered response to a serious and complex issue,” they wrote.
R v. v. PHS Community Services Society. The Supreme Court ultimately decided that provinces were free to open a facility “welcoming” illicit drug use if they wanted to, and that the feds couldn’t use the Controlled Drugs and Substances Act to stop them.
To get to that conclusion, the justices decided that federal laws against drug possession violated the Charter right to “life, liberty and the security of the person.” There is little or no evidence that (safe injection sites) will have a negative impact on public safety,” it writes.
In 2018, the Supreme Court decided that B.C.’s Trinity Western University could be denied accreditation for its law school due to a religious covenant that required students to remain celibate unless they were in a heterosexual marriage (TWU had argued that the denial violated their Charter right to freedom of religion). In 2001, a near-identical Supreme Court case also involving TWU accreditation had gone the exact opposite direction.
The 1867 British North America Act — the document that forms the core of the Canadian Constitution — is rather explicit in stating that interprovincial trade barriers are against the law. “All Articles of the Growth, Produce, or Manufacture of any one of the Provinces shall, from and after the Union, be admitted free into each of the other Provinces,” it states.
But the Supreme Court neatly sidestepped this particular Constitutional clause on the grounds that New Brunswick wasn’t technically maintaining a provincial trade barrier, they were just trying to “exercise oversight over liquor supplies.” And thus the $292.50 fine was upheld.
I disagree that these are all court activism however. You seem to have more of a problem with the Charter than with the court doing more or less precisely what the Charter requires them to do. It seems you would like the legislatures to be able to override the Charter impliedly through legislation rather than expressly using the notwithstanding clause.
I guess we will agree to disagree. I think that the Justices interpretations of the charter reflect not what the elected officials wrote into the charter or into the specific legislation but their progressivism. What give them the right to decide more that 20 years is cruel and unusual punishment? Why 20? Why does one court say the charter doesn't guarantee the right to strike but this one does regardless of precedence? It is not a change in legislation but a change in SC opinion.
Green v Law Society of Manitoba. Professional associations delegated legislative authority may violate the rights of members... membership in an association may now make it such that charter rights do not apply. Green's case was used in the appeal court decision against J. Peterson. Slippery slope here we are... We think we have rights that we plainly, in many cases not not.
The Charter isn’t mentioned anywhere in that case.
A lawyer ignores his professional obligations for two years and is sanctioned by the the regulatory body responsible for protecting the public, the Supreme Court upholds that sanction and you think the Court is being unreasonable?
Prompted by a desire to keep Quebec in the federation, Canada pioneered this incoherent approach to safeguarding rights back in the 1970s and 1980s--and other countries, alas, have followed Canada's lead. The notion of 'collective rights' has now taken hold everywhere, and has become a pretext for elevating what are essentially the practical concerns and interests of different population groups, variously defined (from provinces to 'peoples' to 'distinctive cultures,' etc.), over constitutional protections for individuals.
Far from "disproportionately affecting marginalized communities," it is these communities themselves that have predictably proved the most enthusiastic exploiters of our constitution's rights loophole. You want to educate your children in English? Sorry... what politicians deem the group's best interests decree they must be educated in French, "notwithstanding" your clear right to choose otherwise. This has never made sense, either from the viewpoint of logical consistency or even as a practical matter. Precedents that undermine individual rights threaten all citizens alike, whatever population group they belong to; and how can politicians responsible to voters who actually elected them pretend to speak for voters yet unborn? Who knows what language citizens in a certain geographic area may prefer speaking a hundred years from now? Shouldn't they be free to determine this for themselves? Culture can't be frozen legislatively: it evolves or it dies. Culture is an evolutionary product to begin with: if you think yours is particularly distinctive it's because it became so by serving your population group's ever-changing needs.
Groups have no rights over and above the rights of the individuals who make up the groups. Adding your rights to mine doesn't create a group of two with twice the rights, just an abstraction; and to the extent we imagine we can subtract rights from ourselves and transfer them to this abstraction we simply commit a category mistake. This is the incoherence that lies at the heart of our constitution and of all 'group identity' politics; and, yes, it promises intractable dilemmas in the years to come if we fail to acknowledge and remedy the problem. That process will be anything but easy, and not just because many groups won't perceive such remedy as being in their best interest. As Nietzsche said, "An error that becomes respectable is an error that possesses one seductive charm more," and what's more seductive and respectable than the siren song of tribalism?
And yet... this isn't rocket science. As an individual I can't abridge your rights: I certainly couldn't tell you in what language your children have to be educated. But wait: if I join the right population group and chant "notwithstanding," then I can tell you exactly that. Surely it doesn't take a genius to see that any constitution permitting this kind of sidestep has serious limitations as a rights safeguard.
The Charter was a bad idea, and it should either be rewritten or eliminated.
It basically gave unelected unaccountable judges, philosopher kings in all but name, a veto over everything that matters in Canada. No one unelected, unaccountable body should ever have that amount of power, precedents be damned.
Chalk this up to yet another Pierre Trudeau idea that is celebrated by old boomers but what didn't age well. It was nothing more than a power grab by his legal and academia elite class who think so much of themselves.
Canada is a confederation not a federation. Provinces are sovereign in their areas of jurisdiction and until they agree to concede that to national institutions, which they will never do, particularly Quebec, the notwithstanding clause protects the basic integrity of the confederation. No it’s not only about individual rights, collective rights, defended particularly in Quebec which has made clear from day one, is not a multicultural society, is where the need is most obvious. Without the notwithstanding clause, Canada would simply disintegrate. Maybe that would be a good thing in the end and perhaps the only way to protect hard earned cultural and value differences.
Really? Ever hear of Quebec? The referendum of 1980 and then 1995? The Clarity Act? Failure of Meech Lake, Charlottetown? The fact that the Bloc Québécois can be the largest political party representing Quebec in Ottawa? Your Canada was fine perhaps, but Canada certainly was not.
I was in a policy group in the federal government in National Health and Welfare while this was going on and participated directly. I guess someone forgot to tell us the nothwithstanding clause wasn’t about the shock of Levesque winning in 1976 and the referendum of 1980 because we sure the hell thought it was! How else would you suggest dealing with provinces who are sovereign in their areas of jurisdiction? Sovereign, i.e. not at the discretion of any federal institution under any circumstance. It is in fact an elegant solution. Maybe it needs better definition now that one can argue that it is overused, but that does not change the basic idea.
The Charter didn’t remedy Quebec separatism, has nothing to do with it, though if anything can be said to make it worse. Rational self-interest by Quebecers remedied separatism. You’re drawing links between unrelated matters. Is that your only example?
No person with any knowledge of Canadian history or Quebec would ever make such a statement. Trudeau was obsessed with separatism, the repatriation of the constitution with the creation of the charter was primarily about that.
This post perfectly illustrates the problem described in mine. Clearly, a constitution that concerns itself first and foremost with keeping Canada from disintegrating, and with protecting "hard earned cultural and value differences," cannot simultaneous masquerade itself as a reliable defender of citizens' rights. That 'culture and value differences' trump rights for many Quebecois has been made equally clear, legislatively, to the point where we would expect a Quebec that seceded from Canada to become somewhat xenophobic, intolerant of dissent, and an uncomfortable environment for any non-French-speakers. Our constitution is an uneasy compromise that attempts to accommodate these rights-antithetical impulses, with, hopefully, minimal rights infringements by legislatures.
A constitution that concerned itself first and foremost with citizens' rights would contain no "notwithstanding" exemption for violating them, and would accept the possibility of Canada disintegrating if that was a democratic expression of those rights. It would make no concession to "collective rights," wisely regarding this notion not only as incoherent but as a standing invitation to legislatures to trample people's rights whenever these stood in the way of policy implementation.
Canadians were assured when the idea of a notwithstanding clause was introduced, at the very last minute, into our constitutional discussion that legislatures would rarely if ever invoke this transparent counter-rights loophole, because the political fallout would be unacceptable. Unfortunately, this has proved not to be the case.
Interesting perspective. You are conveniently forgetting one salient historical fact. That because of the differing histories regarding religion in francophone and anglophone cultures, in anglophone cultures secularism it means the state does not pick one religion over another while in francophone cultures it means that religion must be separate from the state. That is why both Quebec and France have problems, particularly with Moslem minorities, the major religion that least respects the separation of state and church, where arguably exist the most egregious violations of individual rights by the Quebec governments as well as the French government. The very idea that an independent Quebec would be intolerant and xenophobic on the other hand are just the prattlings of another Anglo-Canadian that just does not get it and probably never will, the ongoing two solitudes problem. Ignoring the miracle of Quebec as the only linguistic minority in the Americas where you can be whatever you want to be in your own language and culture is typical of English Canadian insensitivity and ignorance. Has it ever occurred to you? Just curious. You are locked into your own cultural bubble, which by the way I am often quite supportive of, but it unhelpfully continues to ignore the reality of the legitimacy and need for collective rights.
(?) I'm puzzled by this defensiveness from someone who's already made the point, unprompted, that Quebec isn't a multicultural society and has little prospect of becoming one, and also by the response's evasiveness. That the attempt to square the circle in 1980 (resulting in the unsatisfactory constitution we have) was driven by historical forces goes without saying; but what bearing does such an acknowledgment have on the logical and conceptual confusions at the heart of our constitution, which are my expressed concerns and to a large extent those of the article's author (he calls our charter "a wedge that divides")? If you have a case to make for the conceptual coherence of 'collective rights' I'd be interested to hear it; and I can only hope it's evident to you that no appeal to history will help with this kind of task.
In your eagerness to instruct me you've jumped to several conclusions that suggest a fundamental misunderstanding of how inference works. You might be interested to know that I've been married to a Frenchwoman for over forty years, and that as a retired reference librarian with a lifelong interest in information sources and their reliability, and the state of the information commons generally, I'm probably one of the least bubble-imprisoned individuals you could ever hope to meet. I have a philosophy M.A, another graduate degree in information science, eight thousand books in my home library, and a reading background in philosophy, literature and intellectual history that would leave most people's in the dust. How about you? We're all somewhere on the 'ignorance' and 'insensitivity' continua; what evidence funds your evident confidence that you're looking down at me and other posters here instead of up?
Concerning "Moslem minorities," they often evince little interest in integrating with others anywhere, for reasons that have little to do with host nations' supposed "egregious violations of individual rights." If you wanted to express your solidarity with this particular population group by going to Mecca and seeing what life is like for them there, you'd be prevented from doing so: unless you're Muslim yourself, you wouldn't even be allowed in the city. Even if you qualified, religiously, if you were female you'd be restricted in what you could wear. 'Collectively,' a group wedded to this medieval approach to rights, tolerance, inclusion, etc., offers few insights into such things that host populations and governments elsewhere can profit from.
This isn't true of all Muslims, of course, but the individual Muslims who fare best in the west are those who've 'westernized' their thinking at least to this extent, and I had several excellent colleagues in this category. Those seeking group diversity role models need look no further than inclusive, invariably rights-respecting library staff; but no librarian I ever worked with would buy the incoherent notion of 'collective rights' for librarians (except as members of a bargaining unit, of course, which is a different kind of right altogether and covers a collective much more precisely definable than that designated by the phrase, 'a people').
Quote: "Each use or even the discussion of this loophole sends a chilling message that the fundamental freedoms outlined in the Charter are not as sacrosanct as Canadians may believe."
Here is the error in the author's thinking. Chater rights are NOT sacrosanct. These rights are subject to the totality of the constitution, including the preamble which allows federal and provincial governments to override rights "...only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." See Emergency Powers Act for an example.
S33 extends the ability to infringe Chater rights as deemed required by provincial of federal governments. People may not like it and can show their displeasure at their convenience.
Bottom line: Constitutional rights always and forever exist down stream from political necessity.
And a postscript: Better start thinking about this because should we ever get down to brass tacks in our ‘nation to nation’ relationship with Indigenous Canadians, you can expect precisely the same problem of collective rights.
And to repeat myself, yes the notwithstanding clause is being overused and that is a problem. But try not to forget, every province is sovereign, not just Quebec. Whether those provinces have a legitimate claim to collective rights is a really interesting problem, but look what happened re Meech Lake.
Provincial interests really shouldn't need the notwithstanding clause. However, faced with unelected supreme courts that render inconsistent judgments, it's not hard to see why it may be necessary. How do you fix the supreme court? Do you hold more referendums and put interpretations back in the hands of citizens? Are citizens too lazy or stupid to be trusted with referendums where we currently allow courts to decide?
I don’t agree that this is a federal problem. It’s a problem with the intolerant right in a few provinces. The feds can’t fix this with education and outreach, and there is zero chance of constitutional reform in this climate of intolerance.
Ultimately it’s up to the voters in each province to hold accountable the governments that use the notwithstanding clause.
The reason the not withstanding clause was added was because the provinces, right and left leaning, would not sign on without it. The provinces wanted an option that they could use in the event they believed the feds were interfering with their provincial rights. I guess I’m considered “intolerant right” because I don’t trust any federal government, right,left or centre, to consider the needs of individual provinces.
If you support the use of the notwithstanding clause to remove human rights and harm a marginalized population then yes, I consider that to be very nearly the definition of intolerant.
These are not “provincial rights” (though they are provincial jurisdiction) they are rights held by people living in the province.
Brad, I found the column interesting and I found the comments on the column riveting, including yours.
I respectfully, however, dislike the idea that only the right can be "intolerant" and I submit that the left can also be intolerant. I humbly request that you amend that minor aspect of your thinking.
I agree Ken! Intolerance is not limited to one side of the political spectrum.
In the context of the use of the notwithstanding clause though it does seem limited to the right side, as left-wing intolerance (it seems to me) tends not to result in the loss of a marginalized group's basic human rights. There also seem to be markedly less swastika flags and and tattoos at left wing demonstrations.
That said, I acknowledge that I may have blind spot here.
I live among several Mennonite communities and no one objects to long dresses, bonnets, suspenders, and brimmed hats. I wouldn't be upset receiving government services by someone so adorned. But when I can't see the person's face, I object. Head scarves, hand tattoos, and the like are fine and this law would not have had to be enacted if Muslims hadn't pushed the issue to the extreme. Muslims pushed and pushed for latitude they wouldn't have received in Muslim countries and now that their host countries have said enough is enough, they whine. The bed has been made. Larry Baswick, Stratford
I wonder what percentage of the 88 per cent of respondents indicating that they view the Charter as a "good thing" have actually READ the Charter. Like section 15.2 that says that equality rights can be ignored or the Notwithstanding Clause that says the Charter can ignored. It is not like the US's Bill of Rights.
The view of the francophone world and culture is that state figures of authority should not visibly represent any religion whatsoever. This is a fundamental historical outcome of the endless battles against the abusive and power hungry Catholic Church. That is what laicite is about. This is not going to change any time time soon and Quebecers will declare independence before they would reverse the lessons of hundreds of years of history. The refusal to deal with the idea of collective rights of a people is the problem in this conversation. Quebec is the nation of the Quebecois and they will continue to the best of their ability to maintain that. If you do not like ethnonationalism even in its liberal variants, suck it up. When all is considered, I think we would conclude that the current constitution works remarkably well. If it is being abused and overused, it would be smart to deal with those issues according to their specific manifestations and not to make it a matter of principle. Canadian obviously have one of the best systems of individual rights protections in the world.
None of the rights to which the notwithstanding clause applies (s. 2, 7-15) are rights that protect a province, rather, they limit the province’s ability to harm the rights of people living in the province.
These rights are not a random selection, they are chosen because they are nearly universally recognized as fundamental human rights.
When interpreting laws you consider the context, and the context of the Charter is to protect these fundamental human rights of individuals from government except as demonstrably justified in a free and democratic society.
To imply, as I take you to be doing, that overriding these rights is no big deal and a good example of governance is willful ignorance of this context.
I didn't say anything about it being a federal tool. I refer only to the provinces because it is only provinces who are using the notwithstanding clause.
For you to ignore that overriding the "concept" of a fundamental freedom, an equality right, or the right to life, liberty and security of the person is the overriding of a basic human right is indeed too abstract for me.
Again, I am not talking about the federal government because they are not the government using the notwithstanding clause. of course the Charter limits both levels of government, and of course it is mostly in criminal cases that it is applied. I'm tempted to think you continue to muddy these waters as a straw man?
I can't think of an example of using the notwithstanding clause to protect a Charter right. Perhaps you can provide an example?
The article we are commenting on blames the feds for the provinces' not being held accountable for the use of the notwithstanding clause and suggests it can be remedied by federal education and outreach, which I think is laughable in this polarized climate. It is for the provincial electorate to hold their governments' accountable.
I consider the Supreme court as more dangerous than the "Notwithstanding Clause". They have consistently interpreted the Charter in weird and unhelpful ways based sometimes, on ridiculous hypotheticals.
I don't understand why media likes to brag about our supreme Court. They've shown that they're willing to read into the charter things that are not there, but only when the purpose aligns with specific (usually progressive) values. They already know what they want to decide then read into the charter the justification.
An example?
The right to unionization and striking but not the right to leave a union while staying in the same job.
Talk about hypocrisy
Do you have a few examples?
A significant chunk of the examples will be found in association with the concept of the Charter as a "living tree" - former CJ McLachlin was a great proponent. This concept effectively allows the SCC to read whatever they want into the Charter, if they think it's the way that it should "grow". A milestone case in 2004 held that "A large and liberal, or progressive, interpretation ensures the continued relevance and, indeed, legitimacy of Canada’s constituting document." While I agree entirely with the practical outcome of that decision (cited as 2004 SCC 79), I vehemently disagree with the concept of nine politically appointed people having the power to change the foundational legislation of a democratic country. I particularly take issue with the idea that our constitution is somehow less "legitimate" if judges are not allowed to read in that which they feel ought to be read in, in accordance with their own "large and liberal" interpretation.
If you navigate over to Canlii.org and type "charter" and "living tree" (both in quotes) into the search field, you will find around 300 examples.
Thanks Paige, we can disagree on whether living tree approach is preferable to the frozen concepts approach to interpreting the Constitution. Though of course, as I expect you know, that decision predates the Reference re same-sex marriage case by the better part of a century. So it would seem you are fighting a very old battle here.
It is indeed a very old battle. And it rages on - as evidenced from this article and many others which are published on an annual basis - because it is of such fundamental importance to our country.
I will also note, lest you misunderstand my perspective, that I am not a proponent of the "frozen in time" concept, nor am I opposed to broadening the protections provided under the Charter (I am actively in favour, actually). I think perhaps where we disagree is with regard to whether such broadening is appropriately carried out by political appointees who sit unchallenged for decades at a time.
[Edited for typo]
I don't understand, how would elected MPs/MLAs be in a position to interpret legislation? They write it, and if in government may also use and enforce it, but not adjudicate its application. Are you contemplating an elected judiciary?
We could turn that around and argue, Why bother with Legislatures representing the commoners to draft, pass and enact legislation when the higher courts can do the legislative amendments to suit?
What I am saying is that, in circumstances in which legislation ought to "grow" in order to remain reflective of Canadian values, the the appropriate mechanism is via legislative amendment.
Sure.
The Supreme Court ruled that sentencing mass killers, including terrorists, to whole-life sentences is cruel and unusual punishment. Life without parole is unconstitutional.
https://www.theglobeandmail.com/canada/article-supreme-court-canada-parole-law/ What's notable about the decision is that it casually dismisses the notion that the Canadian justice system should even be in the business of punishing wrongdoers. “In a legal system based on respect for rights and freedoms, the ‘eye for an eye’ principle does not apply,” it writes. Previously, in a 1996 decision, the Court upheld a lengthy sentence against a serial child rapist for the singular reason that proportionate jail terms were a great way for Canadians to condemn the “moral blameworthiness” of victimizing children. “Retribution is an accepted, and indeed important, principle of sentencing in our criminal law,” it read.
Supreme Court of Canada declared that the right to strike is constitutionally protected under the freedom of association in s. 2(d) of the Canadian Charter of Rights and Freedoms. The Supreme Court had previously ruled in 1987 that there was no constitutional right to strike since that right is a creation of legislation, involving a balance of competing interests in a field that has been recognized by the courts as requiring a specialized expertise.
Supreme Court of Canada won't hear unvaccinated woman's case for organ donation.
A series of recent Supreme Court decisions kneecapping bail and sentencing provisions has helped fuel a crisis of “catch and release” justice (R v. Antic). And, of course, Canada is now experiencing regular incidents of contentious assisted suicide cases — a regime whose existence is due entirely to Supreme Court order.
R v. Nur decided that the imposition of mandatory minimum sentences on gun criminals constituted “cruel and unusual punishment.” The decision was 6-3, with the dissenting judges writing that the whole decision hinged on a “marginally imaginable” scenario that stretched “the bounds of credulity.” “It is not a sound basis on which to nullify Parliament’s considered response to a serious and complex issue,” they wrote.
R v. v. PHS Community Services Society. The Supreme Court ultimately decided that provinces were free to open a facility “welcoming” illicit drug use if they wanted to, and that the feds couldn’t use the Controlled Drugs and Substances Act to stop them.
To get to that conclusion, the justices decided that federal laws against drug possession violated the Charter right to “life, liberty and the security of the person.” There is little or no evidence that (safe injection sites) will have a negative impact on public safety,” it writes.
In 2018, the Supreme Court decided that B.C.’s Trinity Western University could be denied accreditation for its law school due to a religious covenant that required students to remain celibate unless they were in a heterosexual marriage (TWU had argued that the denial violated their Charter right to freedom of religion). In 2001, a near-identical Supreme Court case also involving TWU accreditation had gone the exact opposite direction.
The 1867 British North America Act — the document that forms the core of the Canadian Constitution — is rather explicit in stating that interprovincial trade barriers are against the law. “All Articles of the Growth, Produce, or Manufacture of any one of the Provinces shall, from and after the Union, be admitted free into each of the other Provinces,” it states.
But the Supreme Court neatly sidestepped this particular Constitutional clause on the grounds that New Brunswick wasn’t technically maintaining a provincial trade barrier, they were just trying to “exercise oversight over liquor supplies.” And thus the $292.50 fine was upheld.
https://www.northernnews.ca/news/canada/canada-most-activist-supreme-court-world
I'm impressed, that's a fulsome answer.
I disagree that these are all court activism however. You seem to have more of a problem with the Charter than with the court doing more or less precisely what the Charter requires them to do. It seems you would like the legislatures to be able to override the Charter impliedly through legislation rather than expressly using the notwithstanding clause.
Still, as I say, that's a solid answer!
I guess we will agree to disagree. I think that the Justices interpretations of the charter reflect not what the elected officials wrote into the charter or into the specific legislation but their progressivism. What give them the right to decide more that 20 years is cruel and unusual punishment? Why 20? Why does one court say the charter doesn't guarantee the right to strike but this one does regardless of precedence? It is not a change in legislation but a change in SC opinion.
Green v Law Society of Manitoba. Professional associations delegated legislative authority may violate the rights of members... membership in an association may now make it such that charter rights do not apply. Green's case was used in the appeal court decision against J. Peterson. Slippery slope here we are... We think we have rights that we plainly, in many cases not not.
The Charter isn’t mentioned anywhere in that case.
A lawyer ignores his professional obligations for two years and is sanctioned by the the regulatory body responsible for protecting the public, the Supreme Court upholds that sanction and you think the Court is being unreasonable?
What finding in Greene do you disagree with?
Prompted by a desire to keep Quebec in the federation, Canada pioneered this incoherent approach to safeguarding rights back in the 1970s and 1980s--and other countries, alas, have followed Canada's lead. The notion of 'collective rights' has now taken hold everywhere, and has become a pretext for elevating what are essentially the practical concerns and interests of different population groups, variously defined (from provinces to 'peoples' to 'distinctive cultures,' etc.), over constitutional protections for individuals.
Far from "disproportionately affecting marginalized communities," it is these communities themselves that have predictably proved the most enthusiastic exploiters of our constitution's rights loophole. You want to educate your children in English? Sorry... what politicians deem the group's best interests decree they must be educated in French, "notwithstanding" your clear right to choose otherwise. This has never made sense, either from the viewpoint of logical consistency or even as a practical matter. Precedents that undermine individual rights threaten all citizens alike, whatever population group they belong to; and how can politicians responsible to voters who actually elected them pretend to speak for voters yet unborn? Who knows what language citizens in a certain geographic area may prefer speaking a hundred years from now? Shouldn't they be free to determine this for themselves? Culture can't be frozen legislatively: it evolves or it dies. Culture is an evolutionary product to begin with: if you think yours is particularly distinctive it's because it became so by serving your population group's ever-changing needs.
Groups have no rights over and above the rights of the individuals who make up the groups. Adding your rights to mine doesn't create a group of two with twice the rights, just an abstraction; and to the extent we imagine we can subtract rights from ourselves and transfer them to this abstraction we simply commit a category mistake. This is the incoherence that lies at the heart of our constitution and of all 'group identity' politics; and, yes, it promises intractable dilemmas in the years to come if we fail to acknowledge and remedy the problem. That process will be anything but easy, and not just because many groups won't perceive such remedy as being in their best interest. As Nietzsche said, "An error that becomes respectable is an error that possesses one seductive charm more," and what's more seductive and respectable than the siren song of tribalism?
And yet... this isn't rocket science. As an individual I can't abridge your rights: I certainly couldn't tell you in what language your children have to be educated. But wait: if I join the right population group and chant "notwithstanding," then I can tell you exactly that. Surely it doesn't take a genius to see that any constitution permitting this kind of sidestep has serious limitations as a rights safeguard.
The Charter was a bad idea, and it should either be rewritten or eliminated.
It basically gave unelected unaccountable judges, philosopher kings in all but name, a veto over everything that matters in Canada. No one unelected, unaccountable body should ever have that amount of power, precedents be damned.
Chalk this up to yet another Pierre Trudeau idea that is celebrated by old boomers but what didn't age well. It was nothing more than a power grab by his legal and academia elite class who think so much of themselves.
Canada is a confederation not a federation. Provinces are sovereign in their areas of jurisdiction and until they agree to concede that to national institutions, which they will never do, particularly Quebec, the notwithstanding clause protects the basic integrity of the confederation. No it’s not only about individual rights, collective rights, defended particularly in Quebec which has made clear from day one, is not a multicultural society, is where the need is most obvious. Without the notwithstanding clause, Canada would simply disintegrate. Maybe that would be a good thing in the end and perhaps the only way to protect hard earned cultural and value differences.
Canada existed just fine prior to the Charter, admittedly more fine for white heterosexual men, but still far from disintegrating.
Really? Ever hear of Quebec? The referendum of 1980 and then 1995? The Clarity Act? Failure of Meech Lake, Charlottetown? The fact that the Bloc Québécois can be the largest political party representing Quebec in Ottawa? Your Canada was fine perhaps, but Canada certainly was not.
Without the notwithstanding clause Quebec would be long gone. You are being silly now.
I was in a policy group in the federal government in National Health and Welfare while this was going on and participated directly. I guess someone forgot to tell us the nothwithstanding clause wasn’t about the shock of Levesque winning in 1976 and the referendum of 1980 because we sure the hell thought it was! How else would you suggest dealing with provinces who are sovereign in their areas of jurisdiction? Sovereign, i.e. not at the discretion of any federal institution under any circumstance. It is in fact an elegant solution. Maybe it needs better definition now that one can argue that it is overused, but that does not change the basic idea.
The Charter didn’t remedy Quebec separatism, has nothing to do with it, though if anything can be said to make it worse. Rational self-interest by Quebecers remedied separatism. You’re drawing links between unrelated matters. Is that your only example?
No person with any knowledge of Canadian history or Quebec would ever make such a statement. Trudeau was obsessed with separatism, the repatriation of the constitution with the creation of the charter was primarily about that.
Again, you link unrelated matters. Repatriation of the Constitution coincided with the enactment of the Charter, but did not require it.
The Charter did not and does not help with separatism.
This post perfectly illustrates the problem described in mine. Clearly, a constitution that concerns itself first and foremost with keeping Canada from disintegrating, and with protecting "hard earned cultural and value differences," cannot simultaneous masquerade itself as a reliable defender of citizens' rights. That 'culture and value differences' trump rights for many Quebecois has been made equally clear, legislatively, to the point where we would expect a Quebec that seceded from Canada to become somewhat xenophobic, intolerant of dissent, and an uncomfortable environment for any non-French-speakers. Our constitution is an uneasy compromise that attempts to accommodate these rights-antithetical impulses, with, hopefully, minimal rights infringements by legislatures.
A constitution that concerned itself first and foremost with citizens' rights would contain no "notwithstanding" exemption for violating them, and would accept the possibility of Canada disintegrating if that was a democratic expression of those rights. It would make no concession to "collective rights," wisely regarding this notion not only as incoherent but as a standing invitation to legislatures to trample people's rights whenever these stood in the way of policy implementation.
Canadians were assured when the idea of a notwithstanding clause was introduced, at the very last minute, into our constitutional discussion that legislatures would rarely if ever invoke this transparent counter-rights loophole, because the political fallout would be unacceptable. Unfortunately, this has proved not to be the case.
Interesting perspective. You are conveniently forgetting one salient historical fact. That because of the differing histories regarding religion in francophone and anglophone cultures, in anglophone cultures secularism it means the state does not pick one religion over another while in francophone cultures it means that religion must be separate from the state. That is why both Quebec and France have problems, particularly with Moslem minorities, the major religion that least respects the separation of state and church, where arguably exist the most egregious violations of individual rights by the Quebec governments as well as the French government. The very idea that an independent Quebec would be intolerant and xenophobic on the other hand are just the prattlings of another Anglo-Canadian that just does not get it and probably never will, the ongoing two solitudes problem. Ignoring the miracle of Quebec as the only linguistic minority in the Americas where you can be whatever you want to be in your own language and culture is typical of English Canadian insensitivity and ignorance. Has it ever occurred to you? Just curious. You are locked into your own cultural bubble, which by the way I am often quite supportive of, but it unhelpfully continues to ignore the reality of the legitimacy and need for collective rights.
(?) I'm puzzled by this defensiveness from someone who's already made the point, unprompted, that Quebec isn't a multicultural society and has little prospect of becoming one, and also by the response's evasiveness. That the attempt to square the circle in 1980 (resulting in the unsatisfactory constitution we have) was driven by historical forces goes without saying; but what bearing does such an acknowledgment have on the logical and conceptual confusions at the heart of our constitution, which are my expressed concerns and to a large extent those of the article's author (he calls our charter "a wedge that divides")? If you have a case to make for the conceptual coherence of 'collective rights' I'd be interested to hear it; and I can only hope it's evident to you that no appeal to history will help with this kind of task.
In your eagerness to instruct me you've jumped to several conclusions that suggest a fundamental misunderstanding of how inference works. You might be interested to know that I've been married to a Frenchwoman for over forty years, and that as a retired reference librarian with a lifelong interest in information sources and their reliability, and the state of the information commons generally, I'm probably one of the least bubble-imprisoned individuals you could ever hope to meet. I have a philosophy M.A, another graduate degree in information science, eight thousand books in my home library, and a reading background in philosophy, literature and intellectual history that would leave most people's in the dust. How about you? We're all somewhere on the 'ignorance' and 'insensitivity' continua; what evidence funds your evident confidence that you're looking down at me and other posters here instead of up?
Concerning "Moslem minorities," they often evince little interest in integrating with others anywhere, for reasons that have little to do with host nations' supposed "egregious violations of individual rights." If you wanted to express your solidarity with this particular population group by going to Mecca and seeing what life is like for them there, you'd be prevented from doing so: unless you're Muslim yourself, you wouldn't even be allowed in the city. Even if you qualified, religiously, if you were female you'd be restricted in what you could wear. 'Collectively,' a group wedded to this medieval approach to rights, tolerance, inclusion, etc., offers few insights into such things that host populations and governments elsewhere can profit from.
This isn't true of all Muslims, of course, but the individual Muslims who fare best in the west are those who've 'westernized' their thinking at least to this extent, and I had several excellent colleagues in this category. Those seeking group diversity role models need look no further than inclusive, invariably rights-respecting library staff; but no librarian I ever worked with would buy the incoherent notion of 'collective rights' for librarians (except as members of a bargaining unit, of course, which is a different kind of right altogether and covers a collective much more precisely definable than that designated by the phrase, 'a people').
Quote: "Each use or even the discussion of this loophole sends a chilling message that the fundamental freedoms outlined in the Charter are not as sacrosanct as Canadians may believe."
Here is the error in the author's thinking. Chater rights are NOT sacrosanct. These rights are subject to the totality of the constitution, including the preamble which allows federal and provincial governments to override rights "...only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." See Emergency Powers Act for an example.
S33 extends the ability to infringe Chater rights as deemed required by provincial of federal governments. People may not like it and can show their displeasure at their convenience.
Bottom line: Constitutional rights always and forever exist down stream from political necessity.
And a postscript: Better start thinking about this because should we ever get down to brass tacks in our ‘nation to nation’ relationship with Indigenous Canadians, you can expect precisely the same problem of collective rights.
And to repeat myself, yes the notwithstanding clause is being overused and that is a problem. But try not to forget, every province is sovereign, not just Quebec. Whether those provinces have a legitimate claim to collective rights is a really interesting problem, but look what happened re Meech Lake.
Provincial interests really shouldn't need the notwithstanding clause. However, faced with unelected supreme courts that render inconsistent judgments, it's not hard to see why it may be necessary. How do you fix the supreme court? Do you hold more referendums and put interpretations back in the hands of citizens? Are citizens too lazy or stupid to be trusted with referendums where we currently allow courts to decide?
Perhaps you have at least one example of an “inconsistent judgment”?
I don’t agree that this is a federal problem. It’s a problem with the intolerant right in a few provinces. The feds can’t fix this with education and outreach, and there is zero chance of constitutional reform in this climate of intolerance.
Ultimately it’s up to the voters in each province to hold accountable the governments that use the notwithstanding clause.
The reason the not withstanding clause was added was because the provinces, right and left leaning, would not sign on without it. The provinces wanted an option that they could use in the event they believed the feds were interfering with their provincial rights. I guess I’m considered “intolerant right” because I don’t trust any federal government, right,left or centre, to consider the needs of individual provinces.
If you support the use of the notwithstanding clause to remove human rights and harm a marginalized population then yes, I consider that to be very nearly the definition of intolerant.
These are not “provincial rights” (though they are provincial jurisdiction) they are rights held by people living in the province.
Even the "rights" made up by judges after 1982?
Yeah, that's too much of a stretch in a democracy. This isn't a country run by philosopher kings yet.
Brad, I found the column interesting and I found the comments on the column riveting, including yours.
I respectfully, however, dislike the idea that only the right can be "intolerant" and I submit that the left can also be intolerant. I humbly request that you amend that minor aspect of your thinking.
I agree Ken! Intolerance is not limited to one side of the political spectrum.
In the context of the use of the notwithstanding clause though it does seem limited to the right side, as left-wing intolerance (it seems to me) tends not to result in the loss of a marginalized group's basic human rights. There also seem to be markedly less swastika flags and and tattoos at left wing demonstrations.
That said, I acknowledge that I may have blind spot here.
I live among several Mennonite communities and no one objects to long dresses, bonnets, suspenders, and brimmed hats. I wouldn't be upset receiving government services by someone so adorned. But when I can't see the person's face, I object. Head scarves, hand tattoos, and the like are fine and this law would not have had to be enacted if Muslims hadn't pushed the issue to the extreme. Muslims pushed and pushed for latitude they wouldn't have received in Muslim countries and now that their host countries have said enough is enough, they whine. The bed has been made. Larry Baswick, Stratford
I wonder what percentage of the 88 per cent of respondents indicating that they view the Charter as a "good thing" have actually READ the Charter. Like section 15.2 that says that equality rights can be ignored or the Notwithstanding Clause that says the Charter can ignored. It is not like the US's Bill of Rights.
My guess would be single digits.
The view of the francophone world and culture is that state figures of authority should not visibly represent any religion whatsoever. This is a fundamental historical outcome of the endless battles against the abusive and power hungry Catholic Church. That is what laicite is about. This is not going to change any time time soon and Quebecers will declare independence before they would reverse the lessons of hundreds of years of history. The refusal to deal with the idea of collective rights of a people is the problem in this conversation. Quebec is the nation of the Quebecois and they will continue to the best of their ability to maintain that. If you do not like ethnonationalism even in its liberal variants, suck it up. When all is considered, I think we would conclude that the current constitution works remarkably well. If it is being abused and overused, it would be smart to deal with those issues according to their specific manifestations and not to make it a matter of principle. Canadian obviously have one of the best systems of individual rights protections in the world.
None of the rights to which the notwithstanding clause applies (s. 2, 7-15) are rights that protect a province, rather, they limit the province’s ability to harm the rights of people living in the province.
These rights are not a random selection, they are chosen because they are nearly universally recognized as fundamental human rights.
When interpreting laws you consider the context, and the context of the Charter is to protect these fundamental human rights of individuals from government except as demonstrably justified in a free and democratic society.
To imply, as I take you to be doing, that overriding these rights is no big deal and a good example of governance is willful ignorance of this context.
I didn't say anything about it being a federal tool. I refer only to the provinces because it is only provinces who are using the notwithstanding clause.
For you to ignore that overriding the "concept" of a fundamental freedom, an equality right, or the right to life, liberty and security of the person is the overriding of a basic human right is indeed too abstract for me.
Again, I am not talking about the federal government because they are not the government using the notwithstanding clause. of course the Charter limits both levels of government, and of course it is mostly in criminal cases that it is applied. I'm tempted to think you continue to muddy these waters as a straw man?
I can't think of an example of using the notwithstanding clause to protect a Charter right. Perhaps you can provide an example?
The article we are commenting on blames the feds for the provinces' not being held accountable for the use of the notwithstanding clause and suggests it can be remedied by federal education and outreach, which I think is laughable in this polarized climate. It is for the provincial electorate to hold their governments' accountable.