S33 (The Notwithstanding Clause) of the Canadian Charter of Rights and Freedoms (The Charter) is a "nuclear weapon" that can be used to override the guarantees in the rest of the Charter. The original purpose and intent of it was to provide a tool that legislators could use when the conflict between the common good and individual rights was so intractable that there was no other real option other than to limit the Charter Rights of individuals in a way that exceeds the boundaries of "reasonableness" set out in S1 of the Charter.
In my lifetime, I have only seen one instance where the application of S33 has had a solid and ultimately reasonably justified application, and that is with respect to Québec's language and culture law (known at one time as Bill 101 - decades ago). The justification for that law and the use of S33 to shield it was fairly straightforward: The province of Québec exists as a unique linguistic and cultural island surrounded by an otherwise overwhelmingly anglophone cultural mosaic in the rest of North America. Therefore, it was deemed "reasonable" to allow Québec to limit the use of English and other languages within the province. Given the circumstances, I can actually agree with that reasoning even though it does place non-francophone Québecers in a more difficult situation in a number of respects. (Note: This does not mean that I agree with all of Québec's applications of S33, merely that the reasoning in this particular case made sense)
More recently, a number of provinces have invoked S33 to shield various pieces of legislation from court scrutiny relative to The Charter. Often, this has been to arbitrarily limit, or even outright revoke fundamental rights of identifiable groups of citizens. Saskatchewan has used it to restrict the ability of transgender youth to adopt a new name, or pronouns in schools; Alberta is planning to use it in a much more sweeping ban on key aspects of life for transgender Albertans; Ontario has used it several times to attack workers' right to strike. Québec has used the instrument to protect a “secularism” law that looks more like an attack on fundamental religious freedoms enshrined in the Charter.
Often, the laws in question are based on ideological concerns rather than matters of greater public good. Whether it is Alberta going after transgender people, or Québec’s so-called “secularism” bill, the legislation arises out of concerns that are manufactured more than they are real.
It seems more than a bit of a reach to my mind that a person wearing a religious symbol - whether that is a cross, a hijab, or a kirpan - impacts in any way their ability to deliver front line government services to the public. The rationale behind this legislation seems on the face of it to be thin at best, misguided and ill-informed at least.
Similarly, Alberta’s law banning treatment for transgender youth is an appalling example of using disinformation to justify attacking an already marginalized minority. Similarly, banning trans women from participating in sport is an ill-informed attack that leverages disinformation and ambiguous science to justify its existence.
Both of these examples attack fundamental rights without material justification for them. It is, in my view, an abuse of S33 to use it to shield these laws from scrutiny. If the government is going to limit the rights of people, or intervene directly in their ability to access appropriate healthcare, it should be incumbent on the government to demonstrate specific and clear reasons to justify doing so.
I have long felt that the interpretation of S33 should be subject to review under the auspices of S1 of the Charter. In other words, it should be imperative that a legislature be able to demonstrate in clear terms the compelling reasons for invoking S33, and that those reasons be subject to scrutiny in the courts just as much as the law itself should be subject to scrutiny.
As the factum filed by the Attorney General of Canada in English Montreal School Board, et al. v. Attorney General of Quebec, et al. argues, applications of S33 that irreparably damage the rights and freedoms in the Charter can be seen as an unauthorized amendment to the constitution (See point 31 of the factum). Further, the Attorney General of Canada argues that S33 is only intended for temporary modifications to rights, and not to buttress long term modifications to rights.
The whole argument in the Federal Government's factum is fascinating, but in particular the emphasis on the temporary nature of S33 meaning that using it to inflict long term damages to the rights of people is in effect amending the constitution would make the laws in Alberta and Saskatchewan in particular illegal, and therefore not insulated by S33. If the SCC rules along these lines, it would put a significant crimp in the ability of malicious governments to decide to attack minorities through legislation.
In fairness, there are over 60 factum documents filed in this case already, and I understand more are on the way. So, the SCC has a lot of material to weigh in this matter.
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