By: Yildiz Subuk, Staff Writer
Section 33, also known as the notwithstanding clause under the Canadian Charter of Rights and freedom, allows the provincial and federal government to override certain components of one’s human rights. When section 33 is invoked, the government can override certain sections of the charter including; section 2 (fundamental freedoms, including freedom of thought, belief, and expression), section 7-14 (legal rights), and section 15 (equality rights). In recent years, the use of this section has become increasingly irresponsible as politicians try to push for more authoritarian policy and less individual freedom. The conversation around section 33 is even more relevant now, as Conservative party leader, Pierre Poilievre, has revealed his intention to use the clause for making punishment on crime harsher.
Like most of his policies, the specifics remain unclear, as he doesn’t adequately point out what part of the criminal justice system he wants to fix. This could range from harsher punishments on automobile theft to further penalizing drug users, many of whom are already marginalized. While there should be critical discussions about the efficacy of our criminal justice system, using this clause should not be the approach, especially when there hasn’t been clear communication about how it will be used. Poilievre’s careless parading of the ability to invoke section 33 toes the line of a blatantly fascist agenda. “All of my proposals are constitutional,” Poilievre told the Canadian Police Association. “We will make them constitutional, using whatever tools the Constitution allows me to use to make them constitutional. I think you know exactly what I mean.”
This section is often put into effect when a government wants to pass a law that has been previously fought against, and when used, the notwithstanding clause is valid for five years until it is lifted. There is no limit on the amount of times a government can use this section. To ensure that this section doesn’t corrode every facet of democracy, one of the most significant sections the notwithstanding clause can’t touch is democratic rights, like one’s right to vote.
The Canadian Liberties Association has outlined that to invoke section 33, a majority vote is required. However, they argue this should not be decided by a majority vote, as a mere half of lawmakers should not have that much power. Instead they propose that a supermajority vote must stand in order to invoke the clause — this would mean that anywhere between 66% to 80% of lawmakers must agree to use it. Section 33 has never been used by the federal government, but has been invoked 26 times since its conception in 1981. The clause’s original intent was only as an absolute “last resort.” The section is not something that the government is entitled to use freely, however, there have been multiple instances where different provincial governments have used the notwithstanding clause in undemocratic ways, though even more so in recent years.
In 2019, the notwithstanding clause was used by the Quebec government to ban public sector workers, such as teachers and lawyers from wearing religious symbols, which specifically targeted Muslim women wearing hijab and also forbade turbans and yarmulkes. This ban is a direct violation of people’s religious rights, punishing specific groups whose religious symbols are intertwined with personal identity.
Ontario used section 33 in 2022 to force striking workers back to work as a way to erase their bargaining power. Ontario premier Doug Ford also used the notwithstanding clause more recently to limit the amount of spending third parties can use for a campaign to $600,000. This bill was considered to be “unconstitutional” by the Ontario Court of Appeals, as it limits the information voters get about different political parties and what they stand for. Despite the critiques, this policy was still passed.
In 2000, Alberta attempted to use the clause to limit the definition of marriage to only apply to heterosexual couples, specifically discriminating against same-sex couples. The federal court managed to strike down this rule as marriage was a federal matter, not a provincial one. In this case, the clause was regulated, and the federal government was able to reasonably stop such bigoted actions. But what happens once the federal government is controlled by a party of bigots? Those who plan to exercise their power to violate the rights of citizens, to push their backwards agenda forward? As of recent years, the section has been used to infringe on human rights and proven to be nothing but a revolting display of power, which may reach newer heights after the next federal election.
