Save Our Charter Campaign

The Canadian Charter of Rights and Freedoms protects key rights and freedoms of everyone in Canada. These rights are essential to preserving Canada as a democratic society where we can live our lives freely.

Shockingly, if some of our most important Charter rights were playing cards, the notwithstanding clause would be the Joker that beats them all.

Section 33 of the Charter, commonly known as the “notwithstanding clause”, gives lawmakers the ability to shrug off important fundamental rights and freedoms protected under the Charter.

When invoked, this clause prevents courts from striking down serious Charter violations contained in laws. It is thus nothing short of a Charter override.

The rights subject to the Charter override are far from trivial. Sections 2 and 7 through 15 of the Charter include many of the most basic, essential principles needed for a free and democratic society.

Some of these rights are ever-present in daily life. They allow all people in Canada:

• to freely speak up about issues they care about, regardless of their opinions, aspirations and political beliefs;
• to peacefully protest for their vision of a better world;
• to exercise their religion freely; and
• to collectively bargain for better working conditions.

Other rights covered by the Charter override are there to protect people at their most vulnerable:

• These rights ensure that every individual is treated equally under the law.
• They protect the life, liberty and security of all people, regardless of their backgrounds or circumstances.
• They ensure that people in Canada are not arbitrarily detained, and that they are presumed innocent until proven guilty of an offence.

Since these rights and freedoms are so fundamental to all of us, one might ask why the Charter override even exists. The answer to this question is that it was a political compromise.

In 1981, in the early stages of our Charter’s development, the federal government, Ontario, and New Brunswick supported the entrenchment of a national charter of rights, while the remaining provinces opposed entrenchment in favour of giving lawmakers the last word. Section 33 was seen as a way of solving that deadlock.

Several elected officials directly involved in the 1981 negotiations have since confirmed that the Charter override was never meant to circumvent normal court process, or to be used regularly by any government to override the rule of law:

“The sole purpose of the notwithstanding clause was only for those exceptionally rare circumstances when a province wanted to bring in a specific benefit or program provision for a part of their population — people of a certain age, for example — that might have seemed discriminatory under the Charter.”

– Former Ontario Premier, 1971-1985

“The clause was designed to be invoked by legislatures in exceptional situations, and only as a last resort after careful consideration. It was not designed to be used by governments as a convenience or as a means to circumvent proper process.”

– Canada’s, Saskatchewan’s and Ontario’s Attorney Generals, 1981

The Charter override was intended to be a last resort, not a pre-emptive strike against Charter rights. Alarmingly, recent history shows that some provincial governments have not hesitated to stray from this initial objective. We should all be wary of normalizing the use of this dangerous clause to override important rights and freedoms.

Ontario

In 2021, the Government of Ontario imposed limitations on third-party political expression for a full year prior to an election. This limit on criticism of the government was struck down by the Ontario Superior Court as an unjustifiable infringement on freedom of expression. The Government of Ontario used the Charter override to maintain the restriction rather than changing the law to respect Charter rights.

The province used the Charter override again in 2022 to prohibit education workers from striking, even though courts have determined that freedom of association includes the right to strike and the right to collective bargaining. Many individuals, unions, and organizations (including the CCLA) raised the alarm, and following a wave of popular discontent, the Ontario government repealed this controversial bill.

Quebec

In June of 2019 Quebec used the Charter override in Bill 21 to ban public sector workers such as teachers, lawyers, and police officers, from wearing religious symbols. This grievous infringement on freedom of religion and expression applies to symbols which might appear on jewelry, such as the crucifix and the Star of David, as well as to garments essential to religious observance, such as hijabs, turbans, and yarmulkes. CCLA, along with the National Council of Canadian Muslims, challenged the constitutionality of Bill 21 within 24 hours of the bill becoming law.

Saskatchewan

In 2023 Saskatchewan used the Charter override to ban transgender students from using their chosen names and pronouns in schools without formal parental permission. This imposes irreparable harm on the most vulnerable students – young people who may not be in a position to get support from their families. If schools are required to reveal this aspect of students’ identity to parents, what’s next?

Lawmakers should not wait for the outcome of court challenges to protect our Charter.  CCLA calls on the Parliament and each provincial legislature to enact laws through which they will pledge to only use the Charter override within certain parameters.

Here is what these limits should look like, and why they are necessary:

1) No pre-emptive use

Lawmakers should not use the Charter override until after receiving a final decision from a court.

Lawmakers should aim to enact laws that comply with the Charter, and should let courts review the constitutionality of these laws. The public deserves to know if governments are infringing on their fundamental rights and freedoms.

2) Supermajority requirement

Generally, legislation requires support from a standard majority—greater than one half—of the legislature. This means that the Charter override can be invoked even if it is opposed by as many as 49% of lawmakers involved.

Our Charter rights and freedoms are too important to allow the Charter override to happen by a simple majority vote. A supermajority should be required to invoke the Charter override. This requirement would echo the severe consequences that flow from overriding Charter rights.

3) Egregious rights violations should not be allowed to stand

Courts should have the explicit duty to review the use of the Charter override, so that egregious rights violations are not allowed to stand.

This means that, even if the Charter override has been used, courts could still review a law’s purpose when core rights and freedoms are at stake. Where that purpose is incompatible with our constitutional structure, the courts should be explicitly allowed to strike down the law. This would be the case when a law directly attacks a core fundamental right or freedom that existed well before the Charter was enacted.

Your voice is critical in the fight to protect our fundamental rights and freedoms. Here are some ways you can act to Save our Charter:

• Sign our petition now to tell provincial and federal governments that they should not use the Charter override to allow egregious violations of our rights and freedoms.

• Share this information with your loved ones and your social media networks – this Save the Charter campaign is a great place to start.

• Donate to CCLA today to stand up for the rights and freedoms of all people across Canada.