Canada's Charter Has One Big Flaw

May 1st, 2018 | R. Rados
section 33 charter of rights

If you thought your rights were protected from the whims of an angry mob, you haven't read Canada's Charter Of Rights. Chances are, your knowledge about Canada's Charter Of Rights is limited to what other people have told you. If you haven't actually read it, you might be unaware of the fact that any parliament in Canada can—with a simple majority—suspend your right to practice your religion, speak your mind, join a union, strike, and keep your privacy. This is something no one really talks about, but it's enshrined in Canada's totally flawed and ridiculous Charter Of Rights.

The current incarnation of Canada's Charter is what you get when you let Liberals define your rights. According to Liberals, individual rights and freedoms are subject to the whims of democracy and emotional mobs. This is why Pierre Trudeau's government chose a radically different path from the United States when conceiving this totally idiotic and absurd excuse for a bill of rights. Unlike America's Constitution, Canada's Charter Of Rights guarantees nothing and protects no one.

The US Constitution is designed to protect all individuals from their own government and from the various factions and majorities within the country that have the power to vote. In order to overturn the US Constitution or any one of its 27 amendments, a resolution must be passed by two thirds of a majority in Congress and then ratified by 38 states. In order to be ratified by 38 states, the resolution must be presented to each state legislature and approved based on whatever process each state has in place. In other words, changing or overturning America's Constitution is almost impossible. Back in the day when America's population was smaller and there were fewer states, amending or changing the Constitution was a lot easier.

Canada's Charter is designed to allow any parliament to revoke the rights and freedoms of Canadians with a simple majority vote—the exact opposite of the US Constitution, which is designed to protect individuals from simple majorities. In Canada, your rights only go as far as your elected representatives want them to go. If you don't believe me, you should read Section 33 of the Charter.

If you think it's stupid that the United States can't repeal the Second Amendment, maybe you should try on a different pair of shoes. In a constitutional republic like the United States, it's not all about you, cupcake. Just because you feel like gun rights are stupid and dangerous doesn't mean the rest of the voting public feels the same way. The rights of those you disagree with are equal to yours and subject to the same rules.

The only thing Canada's Charter protects is the right to vote and to carry on with democracy—which, given our modern times and the ease in which angry mobs are formed, isn't very reassuring.

Section 33 And Precedent

In case you're doubting all of this, this is from the Parliament Of Canada website:

Section 33(1) of the Charter of Rights permits Parliament or a provincial legislature to adopt legislation to override section 2 of the Charter (containing such fundamental rights as freedom of expression, freedom of conscience, freedom of association and freedom of assembly) and sections 7-15 of the Charter (containing the right to life, liberty and security of the person, freedom from unreasonable search and seizure, freedom from arbitrary arrest or detention, a number of other legal rights, and the right to equality). Such a use of the notwithstanding power must be contained in an Act, and not subordinate legislation (regulations), and must be express rather than implied.

Under section 33(2) of the Charter of Rights, on the invocation of section 33(1) by Parliament or a legislature, the overriding legislation renders the relevant Charter right or rights “not entrenched” for the purposes of that legislation. In effect, parliamentary sovereignty is revived by the exercise of the override power in that specific legislative context. Section 33(3) provides that each exercise of the notwithstanding power has a lifespan of five years or less, after which it expires, unless Parliament or the legislature re-enacts it under section 33(4) for a further period of five years or less.

The ability of bureaucrats in Ottawa—or any provincial legislature—to vote away your rights is hilariously referred to as “parliamentary sovereignty”. This totally ridiculous and idiotic clause isn't something you would have found anywhere else in the world at the time. This special brand of stupidity is unique to Canada, as the same page states:

The establishment of a legislative override in a constitutional context appears to be a uniquely Canadian development with no equivalent in either international human rights documents or western democratic human rights declarations. There are a number of Canadian legislative precedents to section 33 in the notwithstanding provisions contained in the Canadian Bill of Rights, the Saskatchewan Human Rights Code, the Alberta Bill of Rights and the Quebec Charter of Human Rights and Freedoms. Each of these provisions says that the Bill of Rights, Code or Charter is to have primacy over conflicting legislation unless the overriding provision is invoked.

If you thought the only silly and idiotic things about Canada were the unelected Senate, hate speech laws, the unchecked Supreme Court and the ability for any prime minister to appoint whoever, whenever, to pretty much any major branch of government without any kind of check or balance, I'm sorry to have burst your bubble. Your personal rights are subject to the whims of angry Liberals, Conservatives and New Democrats—maybe even some fringe parties that have yet to make a big impact.

Some might argue that the Governor General, who acts in the symbolic role of representing the Commonwealth's fundamentally useless monarch, has the authority to act as a check on prime ministerial power—but we shouldn't count on that role ever being more than a waste of taxpayer dollars. A Governor General hasn't exercised that kind of dictatorial power in Canada for nearly a hundred years. Even if he or she did, that wouldn't make Canada's current system any less ridiculous. Trading in a prime minister who has almost unlimited power for a monarch is a bad deal in any case.

In any case in which a reactionary government held an absolute majority during or after a massive, distressing crisis or catastrophe, the rights of Canadians could be voted away for a period of five years. Depending on the democratic outcome, that parliamentary override could be either extended or scrapped. If the override in Section 33 is not extended or renewed, your Charter rights would be automatically restored. Even so, the fact that Canada's Charter contains an override in the first place should be something more people want to talk about—like libertarians, who waste most of their time talking about weed and beer.

The rights that are subject to the parliamentary override described in Section 33 include free speech, the right to strike, the right to protest, the right to not be unlawlfully searched and the right to not be tortured or executed—among other things. Some of these rights have been overridden by provincial legislatures in the past, even during times when there was no immediate threat to the economy, national security or democracy. In some cases, attempts to override parts of the Charter were struck down, but the fact that provinces have tried to use the override shows us how eager bureaucrats can be when it comes to fulfilling an ideological agenda.

Out of any province, Saskatchewan has tried to invoke Section 33 the most times. In 1986, the Saskatchewan government pushed through legislation that forced striking union workers back to work. In previous cases, similar laws were ruled unconstitutional, so the government invoked Section 33 for the passage of the SGEU Dispute Settlement Act. Again, in 2015, Brad Wall threatened to invoke Section 33 after the Court Of Queen's Bench struck down legislation that would have allowed the government to force certain striking workers back to work.

In 2017, Brad Wall's government used Section 33 to override a ruling that prohibited the government from paying for non-Catholic children to attend Catholic schools.

A lot of mindless patriots who can't stand criticisms about their goofy constitutional monarchy will say that Section 33 is too unpopular and could never really be used by any government, due to the fear of electoral defeat. Those people need to be reminded of instances of mob rule and bandwagon-jumping from the past.  

Scared And Angry Mobs

After the 9/11 terror attacks, Americans willingly agreed to the Patriot Act and two disastrous wars, before re-electing the president who convinced them to go along with all of it. Today, the Middle East is a wreck and the US has 20 trillion worth of debt.

Canada has been fortunate enough to avoid massive terrorist attacks and catastrophic natural disasters like Hurricane Katrina, but we shouldn't expect our luck to be eternal.

If you need a reminder about how easily mobs can be manufactured, just look at how social media works to ignite outrage over things like free speech and opinions. Within hours, a person's life can come under relentless attack for expressing an unpopular opinion. The idea that being fired or having your livelihood ruined for thinking differently is becoming too normal for comfort. It's only a matter of time before politicians start to experiment with legislation that enacts punishments for free-thinkers and revolutionaries.

Oh wait.

They've already laid the stepping stones for future legislation in Canada with M-103:

Ms. Khalid (Mississauga—Erin Mills), seconded by Mr. Baylis (Pierrefonds—Dollard), moved, — That, in the opinion of the House, the government should:

(a) recognize the need to quell the increasing public climate of hate and fear; (b) condemn Islamophobia and all forms of systemic racism and religious discrimination and take note of House of Commons’ petition e-411 and the issues raised by it; and (c) request that the Standing Committee on Canadian Heritage undertake a study on how the government could

(i) develop a whole-of-government approach to reducing or eliminating systemic racism and religious discrimination including Islamophobia, in Canada, while ensuring a community-centered focus with a holistic response through evidence-based policy-making,

(ii) collect data to contextualize hate crime reports and to conduct needs assessments for impacted communities, and that the Committee should present its findings and recommendations to the House no later than 240 calendar days from the adoption of this motion, provided that in its report, the Committee should make recommendations that the government may use to better reflect the enshrined rights and freedoms in the Constitution Acts, including the Canadian Charter of Rights and Freedoms.

Under the guise of systemic racism and a growing “climate of hate and fear”, your right to protest and criticize archaic religious practices will be taken away before you can even blink. If any future committee finds it necessary to quell this climate of hate and fear by suppressing free speech with legislation, they won't need to worry about violating the Charter Of Rights, because that's what Section 33 is for.

It was Liberals who gave us Section 33 and Motion 103. Coincidentally, both of these things are products of a Trudeau government.

We aren't even in the midst of any real catastrophe or crisis, yet our Liberal government is already trying to convince us that we need to uproot our most basic rights. For that reason, I'd hate to see how this government and its supporters would react to a real disaster or crisis.

I'd hate to see how the mobs would assemble if Canada were to be consumed by a massive economic collapse, terrorist attack or natural disaster. I'd hate to see them use social media to rile a simple majority against our right to speak, assemble, strike, live without fear of aimless arrest and be protected from cruel and unusual punishments. Right now it seems unfeasible, but tomorrow is another day.

Conservatives And Liberals

Democracies become dangerous to individual liberty when certain ideas overtake the mainstream culture. America's founding fathers understood that, just like many Canadian conservatives do today. One of those conservatives was Stephen Harper. However, a more unlikely opponent of Section 33 was Paul Martin, Harper's Liberal rival in 2006.

To be fair, Pierre Trudeau was against Section 33, but eventually caved to Jean Chretien and some provincial leaders—including Peter Lougheed, Alberta's famed conservative premier. The idea was that Section 33 would give provinces a level of autonomy by allowing them to pass their own laws without too many restrictions from the federal government. Unfortunately, Section 33 has become the most dangerous part of Canada's Charter.

It was Jean Chretien who, along with Saskatchewan's eventual premier, Roy Romano, agreed to the notwithstanding clause in 1981. According to Chretien and his 2008 book, My Years As Prime Minister, there would have been no Charter Of Rights without Section 33. The night-long negotiations with provincial leaders, which excluded Quebec, required compromises from the federal government—and that's how Section 33 came to fruition.

Brad Wall's obsession with using Section 33 makes this a non-partisan issue. Both sides, from all ideologies, could find a reason to use Section 33 to violate individual freedoms. In 2006, Paul Martin wanted to ban the federal government from invoking Section 33, while Peter Lougheed pressed to have it included in the Charter in 1981. Socialist Roy Romanow pushed for it, while "conservative" Brad Wall used it. 

Overriding basic rights is a desire of bureaucrats on all sides. This is why repealing Section 33 should be one of the next major election issues of 2019.