Peter L. Biro: Section 33 has no place in a liberal democracy. It should be repealed

The notwithstanding clause is a dangerous and utterly useless tool

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Canadian democracy has always been viewed as resilient and well immune to the democratic setback that occurs in other liberal democracies. Yet there is one feature of the Constitution of Canada that undermines this rather blissful assessment: section 33 of the Canadian Charter of Rights and Freedoms – the infamous notwithstanding clause – which allows Parliament and provincial legislatures to temporarily suspend law. application of the Charter with regard to certain fundamental rights and freedoms.


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Over the past few weeks, we have seen two premiers use the notwithstanding clause to isolate legislation from Charter scrutiny. In Ontario, the Progressive Conservative government of Premier Doug Ford announced plans to invoke the notwithstanding clause to reinstate parts of the Election Protection Act in Ontario that restrict third party election advertising that had been canceled. by a judge for infringement of freedom of expression.

And in Quebec, the government of the Coalition Avenir Québec of Prime Minister François Legault invoked the notwithstanding clause in the context of Bill 96, which aims to amend the Constitution of Canada to identify Quebec as a nation and make French its official and common language. In 2019, the Legault government also used the notwithstanding clause when adopting Bill 21, the State Secularism Act, which aims to eradicate religious symbols in most of the public sector.


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In 2018, Premier Ford introduced a bill halving the size of Toronto City Council and announced that he would be prepared to invoke Section 33 to save the law in case it turned out that ‘it is breaking the charter. Faced with public opposition, Ford and his attorney general cavalierly defended the proposed use of section 33 by touting their access to “all the tools in the toolbox.”

The willingness of our leaders to use the notwithstanding clause is worrying. Although the invocation of Article 33 does not infringe the rule of law because the notwithstanding clause is, indeed, in the constitutional “toolbox”, it nevertheless poisons the liberal-democratic well in which free citizens draw their water.


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Article 1 of the charter already provides that there will be circumstances in which rights and freedoms may be legally restricted. But the courts have imposed a rigorous, multi-pronged test under section 1 that requires the government to establish that the law or action responds to a pressing and substantial question, that its purpose is rationally linked to the restriction of a Charter right, that the infringement of the right must be minimal and that there must be proportionality between the advantages of the law and the deleterious effects of the infringement.

With section 33, however, governments are not required to convince a judge that any of these conditions are present. Except to the extent that a government’s objective is articulated in a legislative debate, the exercise of justifying the restriction of constitutionally protected rights and freedoms may be completely sidelined where such an exercise is likely to produce an inconvenient result. or embarrassing for the government.


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The notwithstanding clause was the product of tough, high-stakes negotiations between federal and provincial negotiators during the 1981 constitutional negotiations. The insistence of then-Premiers Peter Lougheed, Allan Blakeney and Sterling Lyon on the inclusion of ‘Such a constitutional waiver This clause was crucial in securing the required provincial support for the repatriation program.

The main justification for such a derogation was perhaps better articulated by constitutional law scholar Peter Russell: limits of our fundamental rights and freedoms ”. However, nearly four decades after the inclusion of the Canadian Charter of Rights and Freedoms in the Constitution of Canada, we have benefited from a rich and well-developed jurisprudence under section 1.


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It is high time that we recognize that the section 33 loophole undermines Canada’s commitment to protect civil liberties, erodes the legitimacy of our democracy, makes it vulnerable to democratic setback, and undermines Canada’s credentials as a world champion of human rights and liberal democratic values.

The problem is not that Premiers will be tempted to use all the tools in the constitutional “toolbox”, but that section 33 is a dangerous and utterly unnecessary tool. It simply has no place in the constitutional toolbox of a mature and strong liberal democracy. It should be repealed.

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National post

Peter L. Biro is the founder of, a democracy and civic education organization, Fellow of the Royal Society of Arts and President Emeritus of the Jane Goodall Institute, Global. He is a lawyer, business executive and editor of “Constitutional Democracy Under Stress: A Time For Heroic Citizenship”.

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