Last week I explained how the Charter of Rights and Freedoms attempts to balance the rights and freedoms of individuals with the rights and freedoms that we expect to have in a free and democratic society. I mentioned that the document has different sections that describe our fundamental freedoms and our democratic rights. Mostly the document is fairly straightforward. Section One is the clause that allows the state to reasonably limit our rights and freedoms and 2-23 tell what are rights and freedoms are. There are few sections about how the document is applied and then we get to section 33 which reads, "Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter."
This is a very interesting clause in the Charter and is sometimes known simply as "the notwithstanding clause." This clause allows a legislature to keep a law "notwithstanding" that the Court has said that the law both violates a fundamental freedom (section 2) or a legal rights (section 7-14) or an equality rights (section 15) and that the law is not reasonable in a free and democratic society. In other words, the law also violates Section 1 of the Charter. The decision to use the notwithstanding clause must be expressly declared in the legislature and it is subject to a sunset clause of five years.
For many Canadians who did not grow up in the era of constitution making, this clause may seem like an anomaly in a document dedicated to articulating our rights and freedoms. How and why should the state be able maintain such a law? The answer to this lies in the great negotiation that took place when Pierre Trudeau was Prime Minister.
Without doubt, Trudeau wanted the Charter to be a central part of patriating the constitution to Canada. He believed that an articulated set of individual rights and freedoms is paramount to our identity as citizens. This belief drove him to make the Charter central to his legacy. He argued that nationalism was a dangerous idea and that it creates too many opportunities to attach oneself blindly to a state or peoples without due consideration of our moral obligations beyond our borders. He also did not like the idea that the state might intrude into our private lives. You might remember his famous quote that "the state should stay out of the nation's bedrooms."
Trudeau's determination to include the Charter in the 1982 Constitution was equally matched by the determination of the provincial premiers to ensure that principle of federalism and the particular cultures and values of the provinces would not be lost. Hence, Section 33. This clause was put into the document to ensure parliamentary supremacy. In other words, the parliament of Canada or any of the provinces could say that the law they have is the law that matches the particular values and political cultures that exists within their borders. While the Supreme Court may say that an individual's right or freedom is being violated, the federal government and the provincial governments have the right to say that the violation is acceptable in order to uphold a cultural or moral value that is widely accepted.
One might assume that Quebec was the strongest proponent of this clause because of their concern that individual freedoms might override a language law that restricts languages other than French. In fact, Quebec did argue this. However, they were not the only province that feared that this great shift in the relationship between the citizen and the state might make it harder to preserve provincial values.
Trudeau hated the idea of such a clause but he accepted it. I think he did this because he knew that it would be difficult politically to uphold a law after the Court had passed such a damning verdict. You will sometimes hear the threat of the use of the "notwithstanding clause" but it has rarely been applied. Its existence however does demonstrate the strength of the federal principle in Canada which continues to keep us united despite our differences.
