Sunday 20 June 2004
p. A12
Courts, not legislatures, limit freedoms under out Charter: Most judges share the same soft-left views of rights favoured by politicians who oppose Section 33 override
This election campaign has revived the debate over the Charter of Rights and Freedoms' notwithstanding clause.

Most party leaders have denounced Section 33 -- the notwithstanding clause -- as a threat to Canadians' individual rights.

The clause permits Parliament and the provincial legislatures to override court decisions creating new rights or expanding old ones.

When unelected judges become too activist, when they "read in" rights to the Charter that its authors never intended, Section 33 permits the people's elected representatives to reverse all or part of those decisions.

The notwithstanding clause was inserted expressly to counter the new powers the Charter gave judges.

Under Canada's pre-Charter constitution, judges could rule a law within a legislature's or Parliament's jurisdiction, or not. If not, judges could nullify it.

This permitted judges some latitude to declare a law unconstitutional, but it was much harder for judges to throw out entire laws or radically reinterpret laws from the bench.

The "judicial review" provisions of the Charter changed that. Once the Charter became part of our constitution, judges had the authority to amend, rewrite or strike down any federal, provincial, territorial or municipal act brought before them.

This is a staggering amount of clout to give unelected persons over the deliberations of elected ones, and the authors of the Charter recognized it as such.

Former Alberta premier Peter Lougheed has often said that without the notwithstanding clause there would have been no Charter.

Eight of 10 premiers opposed the Charter. Only Bill Davis of Ontario and Richard Hatfield of New Brunswick sided with Pierre Trudeau.

The eight who opposed it feared a massive shift of power from the provinces to the judiciary. They feared the federally appointed Supreme Court of Canada would rule always in favour of centralizing power and always against the autonomy of the provinces.

Lougheed explained, "We needed to have the supremacy of the legislatures over the courts ... . We did not (want) to be in a position where public policy was dictated or determined by non-elected people."

From the start, the notwithstanding clause was intended as a counterbalance to the Charter's judicial review clause.

So for starters, any politician who claims Section 33 violates the Charter is talking through his hat.

The notwithstanding clause is an integral part of the Charter.

It cannot, by definition, undermine the Charter, any more than, say, the equality provisions undermine the Charter.

I am not deaf, though, to the philosophic argument that Parliament and the legislatures should never be able to override fundamental rights. Our key liberties should never be subject to the whim of the majority.

Therefore, the notwithstanding clause is anathema to individual freedom because it permits Canadians to enjoy their fundamental rights only so long as no government invokes Section 33 to limit them.

But if Section 33 is such a threat to freedom, why is there not the same claim made of Section 1?

Section 1 is the judges' notwithstanding clause. It permits judges to negate fundamental freedoms. And judges have used Section 1 to restrict our rights far more often than legislators have used Section 33.

Section 1 "guarantees the rights and freedoms set out in (the Charter)" to all Canadians, but then it permits judges to limit those rights if they believe such limits are "demonstrably justified in a free and democratic society."

That's a loophole you could drive a truck through. And judges have driven through it more than 100 times since the Charter was entrenched -- vastly more often than elected politicians have used the notwithstanding clause.

Indeed, the Supreme Court used

Section 1 to override our freedom of speech just last month.

In the case on third-party advertising during elections -- the so-called gag law -- the court found that third parties had a right to speak out during elections. They even had the right to spend buckets of money making their message heard. The Charter gave them that right.

But the judges used Section 1 to take those rights away, claiming, in effect, that democracy is threatened by too much freedom of expression.

Judges have hidden behind Section 1 to advance women's rights, protect minorities from debates they don't want to hear and limit due process in trials.

They even used Section 1 in a 1995 case known as Egan v. Canada to override gay rights -- rights which the same courts have said Parliament must never infringe upon.

So where's the outcry against Section 1 to match the furor over the notwithstanding clause? If we have fundamental freedoms too precious to be constrained by legislators, are those same freedoms not also too precious to be limited by judges?

A freedom is a freedom is a freedom, isn't it?

The difference, of course, is one of ideology. The liberal-left likes the way judges limit rights, but they are aghast at the rights legislators propose to circumscribe.

Constitutional and judicial expert Ted Morton of the University of Calgary says the debate over Section 33 "has nothing to do with rights or freedoms. It's about preserving a judicial monopoly on decisions about rights," because most judges share the same soft-left world view of rights favoured by political leaders who oppose the legislative override contained in Section 33.
Lorne Gunter
Columnist, Edmonton Journal
Editorial Board Member, National Post
tele: (780) 916-0719
fax: (780) 481-4735
e-mail: lgunter@shaw.ca
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