Does the notwithstanding clause make any sense?

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Canada has a constitutionally entrenched set of guarantees for certain basic rights and freedoms: the Charter. Specific guarantees include fundamental freedoms (including freedom of conscience and religion, freedom of expression, and freedom of association), democratic rights (including the right to vote), mobility rights, legal rights, equality rights, and language rights.

Before the Charter was enacted, Canadians already placed special value in these rights and freedoms. Because of this, governments tended to treat those rights and freedoms with respect. Governments that failed to do so risked punishment from the voters. So before the Charter, Canadians already possessed certain basic rights and freedoms and these were already protected through the democratic process.

At the same time, the process that protected basic rights and freedoms also made them vulnerable. Sweeping restrictions on freedom of conscience and religion might be avoided for fear of electoral backlash, but restrictions targeting members of a minority group might carry no such risks. Democracy provides a measure of protection for basic rights and freedoms, but it does not provide equal protection.

These are the reasons why the Charter was enacted: first, because Canadians value certain basic rights and freedoms, and second, because the incentives of electoral politics are not an adequate safeguard against the violation of those rights and freedoms. Entrenching the Charter added the protection afforded by the legal process to the protection already afforded by the democratic process.

In addition to a list of basic rights and freedoms, the Charter also contains a provision (section 33, the notwithstanding clause) that allows legislatures to override fundamental freedoms, legal rights, and equality rights (but not democratic rights, mobility rights, or language rights) simply by including a declaration to that effect in a bill. Such declarations expire after five years (the maximum life of a legislature) but may be renewed indefinitely.

Section 33 ostensibly provides a safeguard against judicial overreach in applying the Charter, to balance the Charter’s safeguard against legislative encroachment on basic rights and freedoms. But I’m not sure this makes a whole lot of sense.

The rationale behind the five-year expiry date for invocations of the notwithstanding clause is that voters can be counted on to punish governments that misuse the notwithstanding clause. This is equivalent to saying that voters can be counted on to punish governments that violate basic rights and freedoms. But to reiterate, the reason the Charter was enacted in the first place is because we recognize that we can’t count on the democratic process to protect basic rights and freedoms. So if the justification for the notwithstanding clause depends on the assumption that voters will punish governments that misuse it, the justification fails because, as the Charter’s very existence demonstrates, that assumption is false.

Now here comes the practical bit. The notwithstanding clause threatens to make superfluous those sections of the Charter that are subject to override. But the rights and freedoms set out in those sections of the Charter are extremely important; they need real protection. So if section 33 makes those parts of the Charter superfluous, section 33 ought to be repealed. Unfortunately, repealing section 33 is very difficult. But if it’s the case that section 33 ought to be repealed, it must be the case that section 33 ought not to be used. If section 33 ought not to be used, its use ought to be prevented when possible. As it turns out, this is possible. The federal government can prevent provinces from using section 33 by threatening disallowance of bills that use the notwithstanding clause. And if my reasoning so far has been sound, it should.

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