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Kerry Sun: Carney invites the Supreme Court to rewrite the Constitution — at democracy's peril
The Charter's notwithstanding clause exists to keep judges from usurping elected legislators. The feds want to take that away
nationalpost.com
For the 'Mericans, Canada essentially has two different Constitutional documents:
1. The British North-America Act of 1867; and
2. The Constitution Act, 1982, which contains the all-important "Charter of Rights and Freedoms" aka the "Charter"
The Charter guarantees certain rights to Canadian citizens (ie: equality, freedom of expression, etc.)
However, not all provinces were on board with the Charter as originally proposed. Quebec, in particular, was concerned that if the Charter was adopted, its ability to preserve its French culture through laws would be impaired.
This led to a significant compromise: Section 33 of the Charter, also known as the notwithstanding clause.
The notwithstanding clause permits the provincial and federal governments to invoke Charter-infringing legislation as long as they simultaneously invoke the notwithstanding clause as part of the legislation.
It suffices to say that for the past 40 years, Quebec has used the notwithstanding clause liberally to protect French language rights and culture, and openly discriminate against anglophones. In practice, many would also accuse the Quebec government of passing anti-Muslim legislation under the guise of promoting secularism.
In 2019, Quebec invoked the notwithstanding clause and passed legislation "Bill 21" banning the wearing of masks or face coverings by civil servants. Again, ostensibly, this was done to promote secularism, but was clearly targeted against Muslims. Some further reading: https://thecanadianencyclopedia.ca/en/article/bill-21
Of course, a year later, Quebec would be mandating mask use due to COVID-19, with this satire article hilariously exposing Quebec's hypocrisy: https://www.thebeaverton.com/2020/05/quebec-suddenly-fine-with-people-covering-their-faces/
So what's the problem?
Bill 21 is now being challenged at the Supreme Court of Canada, which is not surprising. What is surprising is that the federal government has intervened in the case, and has argued that the way Quebec has been using the notwithstanding clause for the last 40 years is illegal, and the SCC needs to tell Quebec to stop.
Of course, Quebec would (correctly) say that it is only using the notwithstanding clause in the exact way that was negotiated, and was literally the only reason Quebec agreed to sign on to the Charter in the first place.
If the SCC rejects the federal government's position, sanity and order will be restored. However, if the SCC declares that Quebec has been improperly using the notwithstanding clause, the natural outcome will be Quebec (correctly) losing its mind, and undoubtedly calls that Quebec wants out of the Charter (if not Canada entirely.)
