Media report that Danielle Smith’s government is contemplating using Section 33 of the Charter—the notwithstanding clause—to preserve a provincial law that protects children from harmful and unscientific transgender ideology. Some LGBTQ-etc advocates accuse Alberta’s premier of violating Charter rights as they have been defined by one judge in an interim ruling.
These advocates ignore the fact that the Charter protects the right of parents to raise, guide, educate, and nurture their children. Minors do not have a Charter right to keep their parents in the dark about life-altering decisions, like taking the first steps on a futile quest to try to become a member of the opposite sex. When political activists persuade judges to embrace ideology, Section 33 can be a helpful tool to protect children and preserve democracy.
Section 33, far from undermining the Charter, is a crucial and integral part of it.
The Charter would never have been added to Canada’s Constitution in 1982 without Section 33. Based on what Prime Minister Pierre Trudeau and the premiers of the day negotiated, Section 33 struck a balance between American-style judicial supremacy and British-style Parliamentary sovereignty. The Charter gave Canadian courts new powers to strike down laws that, in a judge’s opinion, unjustifiably violate the freedoms of expression, association, conscience, religion, and peaceful assembly, and other rights and freedoms. However, the Charter also respects democracy by deliberately and clearly leaving the final word with accountable, elected representatives.
Section 33 gives our federal Parliament, as well as our 10 provincial legislatures, the ability to override a judge’s interpretation of certain Charter rights for five years at a time. MPs and provincial legislators can continue renewing that five-year term indefinitely. Section 33 allows elected representatives to opt out of a judge’s interpretation of the Charter when the ruling is unreasonable, outrageous, and defies common sense. To be fair, Section 33 also allows politicians to opt out of wise and good court rulings, and to keep unjust laws on the books.
In 2017, the Saskatchewan government used Section 33 to opt out of an outrageous court ruling that, if allowed to stand, would have forced about 10,000 non-Catholic students across the province to leave the Catholic schools they were attending. The provincial government’s policy of funding Catholic schools based solely on student enrolment worked well for parents and students in Theodore (population 315) and Springside (population 478). Non-Catholic parents were happy to send their kids to the nearby Catholic school rather than having children bused to another school 17 kilometres away. A local public school board, ironically named Good Spirit School Division, secured a court order to end provincial funding for non-Catholic students attending Catholic schools. The Saskatchewan government used Section 33 to opt out of this absurd and destructive decision. The government defended school choice for students and parents, allowing them to choose the schools that work best for their families, regardless of their religious faith.
In 2018, Ontario Premier Doug Ford used the notwithstanding clause to opt out of a court ruling which absurdly declared that reducing the number of Toronto’s voting districts from 47 to 25 somehow violated free expression and the right to vote. Reducing the number of city councillors from 47 to 25 imposed hardship on candidates who had already been campaigning for months, and now had to run in a smaller number of districts with different boundaries. The new law was poorly timed and arguably wrong, but it did not prevent anyone from expressing their opinion, nor did it prevent anyone from voting. The constitutional validity of Ontario’s law was ultimately upheld by the Supreme Court of Canada. Using the notwithstanding clause to opt out of a misguided court ruling made it possible for the law to go into effect prior to Toronto’s municipal election, in which everyone—candidates and citizens—had the right to vote and the right to speak freely.
In 2019, Quebec used the notwithstanding clause when passing Bill 21, which banned teachers, lawyers, police officers, and other public sector workers from wearing religious symbols. Quebec has also used Section 33 to retain laws that restrict the use of the English language, after courts had ruled that those laws unjustifiably violate freedom of expression.
The Canadian Civil Liberties Association (CCLA) and other groups say that Section 33 of the Charter is “dangerous” because it “gives lawmakers the ability to shrug off important fundamental rights and freedoms protected under the Charter.” But Section 33 was the result of a political compromise in 1982 that gave lawmakers the last word. The CCLA argues that Section 33 “was never meant to circumvent normal court process, or to be used regularly by any government to override the rule of law.” But the wording of Section 33 makes it clear that circumventing court rulings is exactly the purpose of its inclusion in the Charter. Further, the notwithstanding clause is entirely silent as to how frequently or infrequently it ought to be evoked.
Oddly, people who dislike Section 33 do not describe Section 1 of the Charter, which allows judges to approve of laws that clearly and obviously violate one or more of our fundamental rights and freedoms, as “dangerous.” In recent years, Canadian courts have used Section 1 to uphold lockdown laws that violated our freedoms to move, travel, worship, associate, assemble peacefully, and speak freely. Judges have also upheld vaccine mandates that clearly and obviously violated our Charter right to bodily autonomy.
Courts did not require governments to provide cogent and persuasive evidence to justify “demonstrably” that their lockdowns and vaccine passports actually did more good than harm. Instead, judges lowered the bar for government. In some cases, judges proudly declared themselves to be incapable of resolving the scientific controversies that were at the heart of lockdowns, and then—without conducting scientific analysis and without seriously weighing evidence—went on to approve of those same lockdowns. Our Charter rights and freedoms are routinely violated by judges under Section 1.
As explained in a previous column, whether people like or dislike Section 33 depends largely on whether they see elected representatives as more trustworthy—or less trustworthy—than judges. Fans of democracy and accountability are more likely to appreciate Section 33, viewing it as protecting Canadians from court rulings imposed by ideologically motivated judges. Canadians who deeply trust the judiciary are less likely to appreciate the compromise that Pierre Trudeau and the premiers reached in 1982, when they made Section 33 an integral part of the Charter.
If the Smith government uses Section 33 to preserve Alberta laws that protect children from harmful and unscientific transgender ideology, some will denounce this decision as a violation of the Charter. Such denunciation would be based on a profound misunderstanding of the Charter.
