As the Canadian Charter of Rights and Freedoms celebrates its 44th anniversary, a critical conversation has emerged around its future and the very essence of its existence. Justice Minister Sean Fraser's recent comments highlight a growing concern: the frequent invocation of the notwithstanding clause by provincial governments, which threatens to undermine the Charter's fundamental principles.
In my opinion, this issue is a wake-up call for Canadians to reflect on the state of their constitutional rights and the potential consequences of their erosion.
The Notwithstanding Clause: A Last Resort?
The notwithstanding clause, found in Section 33 of the Charter, is a controversial provision that allows governments to temporarily override specific Charter rights. It was intended as a measure of last resort, to be used only in exceptional circumstances. However, as Fraser points out, provinces are increasingly turning to this clause to bypass judicial reviews, raising questions about its appropriate use.
What many people don't realize is that this clause essentially allows governments to create laws that contradict the very rights and freedoms the Charter is meant to protect. It's a powerful tool that, if misused, can lead to a slow erosion of our fundamental liberties.
A Turning Point for the Charter
The Charter is at a crossroads. On the one hand, we have provinces like Quebec, Saskatchewan, Alberta, Ontario, and the Yukon, who have invoked the notwithstanding clause, potentially setting a dangerous precedent. On the other hand, we have initiatives like the proposed law in Manitoba, which aims to require a review of any provincial legislation that invokes Section 33. This could serve as a much-needed check on the power of provincial governments.
Professor Emeritus Martha Jackman puts it bluntly: "Every time Section 33 is invoked, that is a nail in the coffin of the Charter." This statement should serve as a stark reminder of the potential consequences of our actions.
The Federal Government's Role
While Justice Minister Fraser expresses concern, he also emphasizes that he is not considering constitutional amendments. Instead, he proposes establishing guardrails around the use of the notwithstanding clause, potentially adopting a proposed law by Ontario Senator Peter Harder. This law would amend the Constitution Act to set conditions for Ottawa's use of the clause.
However, Fraser's approach has its critics. University of Ottawa law professor Errol Mendes argues that the federal government should act sooner rather than later, fearing a potential disappointment from the Supreme Court's upcoming decision on Quebec's use of the clause.
A Broader Perspective
The debate around the Charter's future extends beyond the notwithstanding clause. There are questions about whether the Charter is living up to its promise, especially in social justice cases. Professor Emeritus Bill Black reminds us of the Charter's potential and the importance of having a court that interprets it fairly.
Additionally, the federal government faces scrutiny for its own actions, such as appealing a decision that found its use of the Emergencies Act during the 2022 convoy protest unconstitutional.
Conclusion
As we reflect on the Charter's 44th anniversary, it's clear that its future is uncertain. The frequent invocation of the notwithstanding clause, the lack of clarity around its appropriate use, and the federal government's own actions all contribute to a sense of unease.
Personally, I believe that now is the time for Canadians to engage in a deeper conversation about the state of their constitutional rights. We must ensure that the Charter remains a living, breathing document, protecting the freedoms and rights of all citizens, and not just a piece of paper locked away in the archives.
