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Breaking the Charter’s glass

In our Jan. 2019 issue, we look at how the Canadian Charter of Rights and Freedoms is under assault. Most recently, the premieres of Ontario and Quebec have threatened to invoke the notwithstanding clause to override Charter-based decisions.

Many in the legal community are deeply troubled by this threat. While not every lawyer in Canada necessarily thinks the Charter is a force for good overall, I would venture to guess that a large majority do. As we conveyed on our cover, many lawyers feel that when politicians such as Ontario Premier Doug Ford and Quebec Premier Francois Legault invoke the notwithstanding clause, they are bringing a political axe to something that should be above politics.

What defenders of the Charter should acknowledge, though, is that political considerations have always been relevant. Our cover story takes us back to the early days of the Charter and why the notwithstanding clause was included. “What the premiers and prime minister agreed to is a safety valve,” said then-justice minister Jean Chrétien at the time, “which is unlikely ever to be used except in non-controversial circumstances.”

Clearly, things have not unfolded quite as Chrétien predicted. Both Ford and Legault have threatened to use the notwithstanding clause in “controversial circumstances.” And they have the legal authority to do so. But should they?

Like all the political debates, public opinion will play a key role in deciding. As Shannon Kari outlines in his story, the Charter is relatively young, and it doesn’t have the long history that documents such as the U.S. Bill of Rights do. “The Charter is still in its infancy,” criminal defence lawyer Dino Bottos told Kari. “We are now in only the second generation of people who have grown up with it as part of their daily lives.”

Defenders of the Charter, therefore, need to continue to educate Canadians about its value. And this does not just mean formal education in our classrooms, but also taking on cases that resonate with Canadians, whether these are about minority rights, such as same-sex marriage, or economic rights, such as the right to strike.

And perhaps the most difficult area in which to justify the Charter’s importance to everyday Canadians is criminal law. “Charter: Criminal’s friend: Mountie,” blared a headline from the Canadian Press in 1981 as the Charter was set to be law. This law-and-order line of attack is still being used against the Charter today.

Again, the response to this requires proponents to fight in the court of public opinion. More transparency in our criminal courts, whether it be through cameras in the courts or other means of educating the public in real time, is a way to do that.

So, yes, the Charter is under attack. And politicians may be “breaking the glass” in what most would agree is not an emergency. But defenders of the Charter should keep in mind that even if the glass is broken, the words underneath are still there. And it is the Canadian public that will be called on to decide if the words still matter.

  • Notwithstanding Clause

    If the Notwithstanding clause is part of the Charter and it's being utilized the way it was designed ; then how is the Charter 'under attack'? Seems like a selective interpretation of what the Charter means and how it should be used. Further, Australia seems to be doing just fine without a Charter and one could argue the Charter created more expensive and time consuming litigation than originally intended.