When Pierre Trudeau died in 2000, it looked like his political legacy was secure. The Charter of Rights and Freedoms had been in place for nearly two decades, and it had already delivered a series of crucial rights-expanding victories for Canadians. Just as importantly, perhaps, the Notwithstanding Clause had only been used twice outside of Quebec, where it was routinely attached to legislation as a kind of ongoing reminder of the province’s refusal to sign the 1982 Constitution Act. 

As it turned out, the Conservatives who had long sought to undermine or overturn the Charter of Right and Freedoms were just biding their time. In the decades since Trudeau’s death, the Notwithstanding Clause has increasingly been used by provincial governments — Conservative ones, of course — as legal cover for legislation that deprives certain Canadians of their constitutionally guaranteed rights. In the last election, Pierre Poilievre even pledged to use it in order to pass harsher (and, presumably, otherwise unconstitutional) sentencing legislation.

Former prime minister Jean Chretien, who played a key role as attorney general in negotiating the political compromise that secured provincial support for the Charter of Rights and Freedoms, called out the increasingly reckless use of the Notwithstanding Clause in a speech last November. “It was not designed for that,” he said. “It worries me very, very much.”

Now, as the Supreme Court of Canada gathers for an unusually long four-day hearing on the constitutionality of Quebec’s Bill 21, the so-called “secularism law” that bars civil servants like teachers, judges and police officers from wearing religious symbols at work, the battle over the use of the Notwithstanding Clause will finally come to a head. The case involves six different appellants and four respondents, and will hear from a record 51 interveners including provincial governments in British Columbia, Alberta, Saskatchewan, Manitoba and Ontario. It may, in time, end up as one of the most important Supreme Court decisions in Canadian history. 

To those who support Bill 21 and its use of the Notwithstanding Clause, the case is about reaffirming the primacy of legislatures and elected governments in Canada — even if those legislatures are attacking things like religious and personal freedoms. To those who oppose it, the case is a test of how far a democratic government should be allowed to go in limiting those fundamental rights and freedoms. 

For what it’s worth, I fall pretty clearly on that side of the argument. As criminal and constitutional lawyer Nader Hasan wrote in a recent Globe and Mail op-ed, “constitutional rights are not supposed to be optional. Their purpose is to protect the people from government abuse and overreach. Putting the government in charge of deciding when rights get to be overridden is asking the fox to guard the henhouse.”

We need only glance at our various screens showing (in often graphic detail) the various breaches of constitutional rights that the Trump administration commits on a near-daily basis to understand the importance of those protections. Then again, it also reveals the limits of relying on the courts to protect us from the governments we’ve chosen to elect. Yes, the courts are slowing some of the most egregious offenses being committed by the American government against its own people. But the only thing that will stop it is an election that produces a different outcome. 

One of the possible outcomes of the Supreme Court’s deliberations is an endorsement of something called “judicial declarations,” which would allow courts to issue rulings on whether laws protected by the Notwithstanding Clause violate the Charter without actually overturning them. Another possibility being mooted at the upcoming Liberal Party of Canada convention is the use of the federal power of disallowance, which gives the federal government the ability to nullify provincial legislation — one it hasn’t used since 1943. 

That would almost certainly spark a constitutional crisis the likes of which Canada has never seen, and at a moment where it’s least able to weather it. The truth here — and it’s definitely an inconvenient one — is that we can’t, and shouldn’t, count on the courts to save us from ourselves. The creation of the Charter of Rights and Freedoms, and the inclusion of the Notwithstanding Clause in it, was a political outcome, not a legal one. The only way to effectively constrain Conservative provincial governments (and maybe future federal ones as well) from abusing the Notwithstanding Clause is with other political outcomes. 

That means attaching a political price to its use, especially when it’s directed against minorities and other vulnerable populations. That means building a more durable and expansive consensus around the importance of those rights to the broader population. And it means engaging the public in an ongoing conversation about the Charter and its impact on their lives rather than leaving it to constitutional lawyers and the courts. The Charter has spent the last four decades fighting for our rights as Canadians. If we want it to last another four decades, we’ll have to start fighting a little harder for it. 

© National Observer