Brian Lilley;

In a submission to the Supreme Court, the federal government is asking the court to neuter part of the Charter of Rights and Freedoms. The case before the court is a challenge to Quebec’s Bill 21, the law on secularism in the province.

The province has of course used the notwithstanding clause for the bill as they have done several times over the decades with other laws. The notwithstanding clause is also known as section 33 of the Charter, it was a key of the package that got the Charter and the constitutional changes of 1982 passed.

Now, the federal government under Mark Carney is going to ask the courts to limit, in some ways remove this power from elected legislatures while reserving this power for judges.

“The constitutional limits of the s. 33 power preclude it from being used to distort or annihilate the rights and freedoms guaranteed by the Charter, or to reduce them to des peaux de chagrin, that is, to shrivel them beyond recognition, if not transform them into mere legal fictions,” reads the submission.

Section 1 of the Charter allows judges to override Charter rights with no checks and balances, no recourse for citizens. Section 33 allows legislatures to override rights in a limited way and the citizens can vote out governments that they find abusive.

None of the people you will hear from on this issue ,who support the Carney government’s move, will ever ask that judges have their ability to override rights curtailed in anyway.

Expect several provinces, if not all, to oppose this attempt to change the Charter via judicial decree.