Ottawa can't ignore the ongoing tension between individual rights and provincial autonomy.
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.
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.
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.
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.
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.