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The notwithstanding clause is part of the Charter, so by definition it can’t be an attack on the Charter.
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Is it really running roughshod over the Charter of Rights and Freedoms if you use a section of the Charter to protect a law or policy?
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That’s not an idle question, that’s what Saskatchewan Premier Scott Moe is threatening to do after a court injunction blocked a new school policy.
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Moe has asked the speaker of the Saskatchewan legislature to recall members for a special session on Oct. 10 to pass legislation enshrining what had been a policy directive.
After a court in Regina issued an injunction against Moe’s school policy directive on gender in school and parental rights, he says he will use the notwithstanding clause.
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For the longest time, the notwithstanding clause of the Charter of Rights and Freedoms, also known as section 33 of that same charter, was really only used by Quebec. People in the rest of the country would gripe a bit here and there but there was no real outrage.
When a premier in the rest of Canada threatens or actually uses the notwithstanding clause, you would think the world was coming to an end in English Canada’s commentariat. It’s not just the columnists who are fixated on this, reporters suddenly become constitutional experts to rail against the injustices before them.
That’s what happened last year when Ontario Premier Doug Ford used the notwithstanding clause to end a school work stoppage, and it is also what is about to happen to Saskatchewan Premier Scott Moe for daring to stand for parental rights.
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In both instances, the premiers were reacting to overreaching court decisions and using what is a legitimate legal tool. Section 33 of the Charter, the notwithstanding clause, is part of the Charter and therefore, using it can’t be a case of shredding the Charter anymore than Section 1 of the Charter is.
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While Section 33 allows politicians to pass laws that courts may consider to be a violation of individual rights, notwithstanding the violation, Section 1 of the Charter gives judges near unlimited licence to violate individual rights if they feel it is justified “in a fair and democratic” society.
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Any law passed using the notwithstanding clause needs to be renewed on a regular basis and the politicians passing the law can be turfed from office if they go too far. But with Section 1 cases, judges make decisions that affect individual rights with no public recourse.
Section 33 was written into the Charter in a way that restricted its use by politicians. Section 1 is, for the most part, only restricted by how judges decide it should be.
For all those who want to strip Section 33 from the Charter, I’ll agree to that as soon as Section 1 is gone. If you want to have a Charter of Rights and Freedoms that is absolute, let’s make sure neither judges nor politicians can mess with it.
That won’t happen though and the chattering classes now tut-tutting at Moe would rather be governed by a technocracy of bureaucrats and judges than by elected officials any day of the week.
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That’s thankfully not how democracy works.
What Moe is attempting to do is roll back policies that were quietly implemented in school districts across his province, across the country really, with no consultation especially with parents. These policies forbid teachers and school administrators from telling parents that their child has decided to change their name, gender or pronouns at school.
The policy is ostensibly to keep children safe who might be abused by less than accepting parents.
The problem is that this kind of policy assumes all parents are abusers and information must be kept from them. What Moe is proposing is a policy that would inform parents, except in cases where abuse is a consideration, something that would be worked out with the child.
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His policy, like that of New Brunswick Premier Blaine Higgs, assumes parents love their children and want what is best for them and that abusive parents are the exception rather than the rule.
The other side starts from the assumption all parents are abusers, or potential abusers, and therefore must me kept in the dark.
It’s an extremist position but one adopted by Prime Minister Justin Trudeau and his Justice Minister Arif Virani, who has commented on this matter even though it is before the courts.
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“Violating individual rights is not a decision that should be taken lightly,” Virani said in a statement.
The problem here is that he’s Canada’s highest ranking lawyer, he’s also in charge of the court system and he just pronounced that what Saskatchewan is going to do is a violation of individual rights before that has been decided by the courts. He has effectively put his thumb on the scales of justice.
Canada’s courts are already political enough without having a very partisan justice minister, whose government has taken an extreme stance on an issue before the courts, speaking out in a way that might influence judges.
In our system, Parliament is supposed to be supreme not the courts. That would include the provincial legislatures across the country.
Moe isn’t ripping up the constitution or the Charter, he’s using it as intended.
blilley@postmedia.com
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