In whom do you have more faith, judges or politicians? For many Canadians, this question is about which group they trust the least, and not about which group they trust the most. A person’s answer to this question will largely determine whether she or he likes or dislikes Section 33 of the Canadian Charter of Rights and Freedoms, commonly known as the “notwithstanding clause.”
In a recent ruling, the Saskatchewan Court of Appeal seems to be trying to water down the purpose and effect of Section 33, which is an integral part of the Charter. Without Section 33, the Charter would never have been added to Canada’s Constitution in 1982, because the premiers were concerned about judicial overreach.
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 up to five years. That five-year term can be renewed indefinitely, as determined by elected representatives. When judges render a ruling that is extreme, dysfunctional, outrageous, or disconnected from reality, elected representatives can use Section 33 to trump the court’s ruling, thereby keeping their law in place. This power can be applied to good court rulings as well: Politicians can use section 33 to keep their bad law in force, notwithstanding a judge having struck it down.
Section 33 of the Charter empowers Parliament and provincial legislatures to pass a law declaring that a particular law need not comply with the fundamental freedoms outlined in Section 2 (expression, association, religion, conscience, peaceful assembly); the right to life, liberty, and security of the person noted in Section 7; the rights of criminally accused persons set out in Sections 8–14; and equality rights set out in Section 15.
Since the Charter was added to Canada’s Constitution in 1982, Section 33 has generated much outrage from time to time. For example, Quebec has used Section 33 to preserve language laws that obviously violate freedom of expression. Using Section 33, Quebec prohibits teachers, lawyers, police officers, and many others from wearing religious symbols such as crosses, hijabs, turbans, and yarmulkes.
Some want Section 33 removed from the Charter, arguing that it allows politicians to violate the fundamental rights and freedoms of citizens. Oddly, those who oppose Section 33 rarely complain about a very similar provision that allows Canada’s judges to permit governments to violate the fundamental rights and freedoms of citizens: Section 1.
Section 1 of the Charter empowers judges to uphold laws and government policies that clearly and obviously violate our freedoms of association, expression, conscience, religion, and peaceful assembly; our right to life, liberty, and security of the person; and many other Charter rights and freedoms. Since 1982, courts have approved of numerous federal and provincial laws that violated citizens’ freedoms. This became more pronounced after 2020, when judges upheld lockdowns and vaccine passports even while governments admitted in court that these policies did violate Charter rights and freedoms.
In theory, judges only approve of governments violating rights and freedoms if the government “demonstrably” justifies its law or policy as a reasonable limit in a free and democratic society. In practice, many judges have lowered the bar for our federal and provincial governments, and will readily accept the government’s assertions in court, as though government assertions somehow qualify as evidence.
For example, judges have approved of freedom-violating health orders even when the government presented very weak evidence in court. Judges have affirmed Covid restrictions on Charter freedoms without providing any explanation as to why the judge believed the government’s evidence to be more persuasive than the evidence put forward by citizens. When governments defended their lockdowns in court, judges readily accepted the government’s assertions as gospel truth, and wrote the media’s narrative into their judgments rather than seriously weighing the evidence that had been presented in court.
This lowering of the bar for governments in court appears to be political: when the Alberta and Saskatchewan governments defend their policies to protect children from transgender ideology, judges thus far have raised the bar, extending no deference to the government’s policy choices.
Canadians who place a great deal of trust in judges dislike Charter Section 33. Canadians who do not trust judges to protect us from freedom-violating laws dislike Charter Section 1.
While the vast majority of Canadians recognize the scientific fact that there are only two sexes, transgender ideology has infiltrated universities, government-funded media, government bureaucracies, the medical establishment, the legal profession, and the courts. When elected representatives pass common-sense laws and policies that allow parents to love, nurture, guide, and protect their children, they can use Section 33 to protect those laws and policies from being struck down by judges who side with woke ideology. In the same way, if ever a court invalidated a government’s lockdown policy as an unjustified violation of Charter rights and freedoms, that government could use Section 33 to keep its Covid restrictions in force, notwithstanding the court’s ruling.
Ultimately, the survival—and hopefully the flourishing—of Canada as a free society does not depend on judges or on politicians. Both of these groups follow the culture in which they live, breathe, see, hear, read, and think. Neither group is immune to ideological corruption. Both politicians and judges are fully capable of accepting a false claim just because they have heard it repeated thousands of times by the media.
If we want good judges and politicians, we need a good culture: one in which all Canadians cherish in their hearts, and understand with their minds, their human rights and fundamental freedoms.
Both Sections 1 and 33 of the Charter will remain a subject of contentious debate amongst Canadians. Neither section can be repealed without the consent of our federal Parliament plus seven provincial legislatures representing more than half of Canada’s population. So, both sections will be with us for a very long time. The real issue is not whether judges are more (or less) trustworthy than politicians. Rather, what is important is improving our culture.
