We’ve all heard of the “Notwithstanding” clause, which allows key parts of our Charter of Rights and Freedoms to be suppressed for up to five years, and then another five years, and so on. Indefinitely.
Which parts? Well, let’s start with Section 2, which recognizes freedom of conscience and religion; freedom of thought, belief, opinion, and expression; freedom of the press; freedom of peaceful assembly; and freedom of association.
Then there are Sections 7 through 15, which enumerate our “right to life, liberty, and the security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice”; the “right to be secure against unreasonable search or seizure”; the “right not to be arbitrarily detained or imprisoned”; the right to be promptly informed of the reason for an arrest or detention, to legal counsel, and habeas corpus; the right to be tried within a reasonable time, not to be compelled to testify against oneself, and to be presumed innocent until proven guilty; the right not to be subjected to cruel and unusual treatment or punishment; and even the right of equality before the law… to name a few.
These all seem rather important, yet it is well within the power of Parliament or provincial legislatures to suspend any or all of them within their own respective jurisdictions — with no requirement whatsoever for legal justification.
The Notwithstanding clause was originally included to get everyone on-board with the Charter, particularly lawmakers used to essentially no limits on what Parliament or provincial legislatures could do (within their own jurisdictions), who were leery about accepting constitutional constraints; they wanted an escape valve — just in case.
But after more than thirty years, with no real need ever demonstrated, though its use has been suggested time and again, such as for the Parti Québecois’ proposed abhorrent Charter of Values, or upon having some ill-conceived law struck down due to a pesky Charter infringement, does anyone still think we need this?
These fundamental tenets of which we are so rightly proud now infuse every aspect of our society. Yet they hang precariously upon some Parliament or legislature, perhaps controlled by an autocratic majority antagonistic or merely arrogantly indifferent to them, or even well-meaning but misguided and caught up in some myopic hysteria of the day (“9-11” comes to mind) — putting these critical safeguards on indefinite hold.
Do we really need scope to allow harassment, retribution, detainment, or worse, for those who criticize our governments or our leaders, challenge their policies, express unsanctioned or dissenting views, or meet without “permission”?
Do we really need cruel and unusual punishment? Do we really need a means to suspend due process and the rule of law; to allow arbitrary indefinite detention without the bother of trials, legal counsel, interpreters, or just cause; to allow arbitrary, warrant-less, invasions and searches of our homes; unreasonable searches and interrogations of our persons or seizures of our property, and even rubber-hose confessions?
Do we really need built-in tools to create a police state? To protect us from… whom? Do we trust our governments and politicians — that much?
Even in a full-on war or insurrection, which one supposes might justify judicious additional constraints on certain rights, do we really need to enable wholesale internments, or worse? (And I remind you, here, of the WW2 roundup of people of Japanese ancestry — including both born and naturalized citizens— who spent years in internment camps, their businesses and property confiscated and acquired by profiteers. All legal, then, and in the passions of the times it no doubt seemed fitting; but history tells us it was wrongful and unwarranted, and in no small part founded in racism. Beware the passions of the times.)
Absent this clause we do still have Section 1 to draw upon, which guarantees these rights “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” I submit that “reasonable limits,” in the circumstances of war or insurrection, offers more than enough judiciously constrained leeway.
In the present day we see the Harper government, contemptuous of our Parliament and openly insolent toward our Courts, feeling themselves beset and besieged on all quarters, but with a rubber-stamp majority — making laws blithely indifferent to our Charter rights, short-circuiting due process in favour of Ministerial fiat, threatening our citizenship, corrupting our election processes, sideswiping privacy concerns for the convenience of the state, smearing critics and choking off their funding where they can, setting about to treat every protester as a threat, and testing, always testing, every constraint on their authority (all with the most benign intent, of course).
Is this not a strident wake-up call? How strident does it need to get?
If ever we did, we don’t need the Notwithstanding clause anymore. It is an outmoded historical artifact, a lingering threat to our lives, liberty, and ways of life. It is time to repeal it. While it remains, it remains a cocked and loaded gun held to the heart of our freedom, our future, and the Canada that we cherish.