Question: Why would the Charter of Rights and Freedoms have an “escape clause” that allows governments to violate the rights of citizens?
Answer: The answer to this question involves a bit of history, jurisprudence and politics—my definition of a rocking Saturday night. But anyway…
Canada was originally established by an act passed by the British Parliament in 1867. The British North America (BNA) Act functioned as Canada’s written constitution and still forms the core of the Canadian Constitution Act. The BNA Act stipulated that the government of Canada would be similar in form and operation to that of Britain. However, Britain itself functioned without a written constitution; instead, British governmental processes reflected the common law, a collection of individual laws and general practices that had accumulated over time. The rights of citizens were not written down in one single place but were established by precedents going back as far as the Magna Carta in 1215.
Because the BNA Act was, well, British, any constitutional amendments had to be passed by the British parliament and, for a long time, the Judicial Committee of the House of Lords even functioned as Canada’s highest court.
Prime Minister Pierre Trudeau regarded this arrangement as unbecoming of a sovereign and mature Canada, so in the late 1970s he initiated an effort to “patriate” the constitution and bring it under Canadian control. Part of his ambition was to create within the new Canadian constitution an explicit written statement of rights and freedoms, something quite alien to the British tradition.
To achieve this, Trudeau had to negotiate with the provincial governments. Several premiers, among them Alberta’s Peter Lougheed, wanted to preserve the notion of “parliamentary supremacy,” which was a feature of the British tradition. This meant that the elected parliament (including provincial legislatures) should, as democratic bodies, be the ultimate law-making authority, not the unelected courts. The provinces were not satisfied by the inclusion in section 1 of the charter of a statement that rights and freedoms were subject to limitations that could be reasonably justified in a free and democratic society. They insisted that the rights and freedoms ultimately enumerated in the charter had to be subject to some override and that this provision had, itself, to be included in the charter.
To obtain the support he needed to patriate the constitution, Trudeau therefore consented to the inclusion of section 33 in the Canadian Charter of Rights and Freedoms. This clause stated that the Canadian parliament and provincial legislatures could override fundamental freedoms (including, in our case, freedom of association) and legal rights of Canadians for a period of up to five years by passing laws that contained a statement that they were to apply “notwithstanding” other provisions of the charter. The only charter provisions that could not be overridden were the democratic right to vote, the requirement that elections take place, mobility rights and language rights.
It is evident from the historical record that the politicians who framed what became the patriated constitution in 1982 did not anticipate that the “notwithstanding clause” would be used at all frequently, let alone with the casual abandon of the current Alberta government. But here we are.
Because section 33 forms part of the charter, the Association’s legal efforts to challenge its application will be an uphill struggle with no certainty of success. However, some jurists have speculated that the Supreme Court may be amenable to putting some fences around its application. This supposition will be tested not only by the Association’s challenge but by a variety of cases that are either before the Court (Quebec’s Bill 21, which uses the clause to insulate a law prohibiting teachers and some other public employees from displaying religious symbols or wearing religious clothing) or well on their way there (Saskatchewan’s Bill 137, which is similar to Bill 27 in requiring teachers to notify parents if a student uses a name or associated pronouns that are not consistent with their designated gender at birth).
Ultimately, democracy is a work in constant progress. Teachers and the Association have chosen to fight the good fight to preserve not just their own rights and freedoms but ultimately the rights of all Canadians.
Questions for consideration in this column are welcome. Please address them to Dennis Theobald at dennis.theobald@ata.ab.ca.
ATA Executive Secretary
