Section 33 Must Also be Scrapped – a Short Update

In the days since I posted the piece about my opinions on Section 1 of the Charter of Rights and Freedoms and why I believe such a clause has no place in any constitution, there have been relevant developments in the provincial politics of Ontario. Premier Doug Ford has passed a bill known as the Better Local Government Act which, among other things, would cut the size of the Toronto City Council. Although there was much public outrage over the legislation, only some of it was legally viable, such as the concern that it was too close to the municipal election – scheduled to take place on October 22nd – to be making such changes. It was initially blocked by a judge claiming a violation of Section 2(b) of the Charter (the freedom of expression during an election). The Ford administration subsequently filed for appeal, threatening to use Section 33 of the Charter if that, too, failed. Section 33 of the Charter, known as the “notwithstanding clause”, reads as follows:

“Section 33.

(1) 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.

(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.

(3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.

(4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1).

(5) Subsection (3) applies in respect of a re-enactment made under subsection (4).”

In short, Section 33 allows parliament or any provincial legislature to pass laws that are in direct violation of Section 2 or Sections 7 to 15 of the Charter. The only restriction on this is that laws passed by invoking Section 33 have a sunset clause of five years; even so, they can be perpetually renewed. Ultimately, the provincial government won the appeal on the grounds that regardless of the timing of the bill, it was not sufficiently demonstrated in court that the change would hinder the freedom of expression during the election in any significant way. However, this post is not about the Better Local Government Act or the Ford administration, but Even though Section 33 was not invoked in this matter, it is still worth talking about while it is being widely discussed.

My position on Section 33 is simple; I strongly oppose its existence for the same reasons I gave in the previous post about why I oppose Section 1. In fact, I only discovered Section 33 after I finished writing about Section 1. Had I known about it earlier, I would have criticized it as well because it is as, if not even more, problematic than Section 1.

Just to restate my main point from the previous post, Section 1 and 33 defeat the purpose of a document that intends to restrict the power of government to prevent the violation of individual rights. Government – especially a democratically elected one – much of the time does act justly and adherent to the principle of freedom. However, the purpose of a constitution is for it to serve as a check against the government’s otherwise largely unrestricted power. Because while it is important to have a body of authority to uphold the law and every human being’s individual rights, it is equally important for that body to be bound to the same principles. Sections 1 and 33 allow for too much leeway in this vital check on government power.

The more dangerous of the two is Section 33 as it does not require the government to meet any conditions before invoking it. The Canadian government could theoretically use it to absolutely suspend all basic rights outlined in Section 2 and Sections 7 to 15, rendering the constitution useless as a check against almost entirely unrestricted authoritarianism. Even a conditional limiting clause like Section 1 is unacceptable because individual rights, by virtue of being rights, cannot be subject to vague, undefined limitations. I laid out my arguments on Section 1 in more depth in the previous post so I would recommend reading it if you are curious.

Although I am grateful for it, I believe there are more than a few flaws with the Charter of Rights and Freedoms and that the existence of Sections 1 and 33 are the biggest ones. To give true meaning to the rights and freedoms listed in the Charter, we must remove any limitations on them and have them apply in their entirety.