The Canadian Charter of Rights and Freedoms needs to be rehabilitated. .The COVID-19 regime caused enormous damage to individual rights and their protections in Canada. But nothing is forever, and citizens and their governments can push for the Charter to be rehabilitated. That can be done by insisting Charter rights are respected and enforced. What we don't need is false panic and fictitious rights. .Canadian law acknowledges the rights of parents as principal decision-makers for their children's education and moral development. In situations of abuse, there already is a battery of mechanisms to protect children. These include counsellors, law enforcement, courts, and various family services..Governments uphold existing parental rights and also protect children in exceptional circumstances, but governments are not enemies of parents nor are they against children. .None of this means children have no rights nor that children's rights are disappearing. Those are weaponised claims one is likely to hear from the coalition government in Ottawa, that seem to be pitting parents against the rights of children. But without getting into legal weeds, it suffices to say that none of the rights children may have erase those of their parents. .Similarly, governments have the right to make decisions in the constitutional areas the Constitution grants to them. Areas such as family and social affairs are regulated by provinces and not the federal government. Only provincial governments can make laws and policy in family affairs. .Courts may review policies or laws in cases of government disputes or citizen concerns about rights and freedoms. In such cases, courts can suspend a policy or legislation. Knowing courts have this power, rights-seekers often litigate rights demands, instead of handling them in the political arena..This strategy of litigating in the courts to push governments to do what governments may not want to do has been well exploited in Canada since the advent of the Charter of Rights..But the Canadian Charter also includes a provision known as the 'notwithstanding clause,' which is Section 33 of the Charter. .As such, the notwithstanding clause is part of the Charter, which is part of the Constitution. Its use, however sporadic, is not a violation of the Charter or the Constitution as many wrongfully argue..Nor is the Charter being eviscerated when section 33 is applied, as columnist Andrew Coyne said. Mr. Coyne doesn’t seem to remember Saskatchewan last used the Notwithstanding Clause six years ago in 2017, in a case also related to the education system (and the sky did not fall then either!)..This clause in the Charter allows governments to suspend temporarily specific rights and freedoms protected by the Charter. It also allows democratic governments to pass legislation that sets faulty court actions and rulings aside..However, it is important to note the use of the notwithstanding clause is subject to limitations and must be explicitly invoked by governments. When it is, the courts have no authority over the policy or legislation designed to be protected by section 33..Radicals often argue it is an anti-democratic feature of the Charter and should no longer be used. They claim it is illegitimate to use it, which partly explains how they fail to understand it is a feature of the Charter..But that is wrong. The notwithstanding clause was born in Western Canada, the brainchild of Premier Peter Lougheed, who saw in it a tool to prevent the federal government from abusing its powers and from pushing homogenizing policies to the provinces..Lougheed was strongly backed by most of the premiers at the time and the premiers of Saskatchewan and of Quebec were his strong allies against then-Prime Minister Pierre Trudeau. .In short, Section 33 is a perfectly legitimate and "democratic" tool. It provides a balance between protecting individual rights and allowing governments to make policy decisions in specific circumstances, without the interference of other governments or institutions..So when an overzealous sexual-identity group in Saskatchewan wants to use the courts to bypass the wishes of the majority of the parents, the invocation of Section 33 is lawful, constitutional, and legitimate. .And that is not a violation of a Charter right because there is no such thing as the right of a child to keep secrets from a parent and there is no such thing as the right of an educator to interfere with parental authority. When an educator is aware there may be abuse, there are plenty of means by which children can be protected..But it is highly unwise for a court to remove rights from an entire category of citizens, in this case, parents, on account some parents might break the law, commit a crime or abuse a child. .It is equally unwise to conclude all teachers put the interests of the children ahead of their own. Shutting parents out will not protect every child in danger and could increase the number of children who might be victimized in the schools. .Saskatchewan's policy regarding pronouns in schools is a no-brainer. So is the decision to rehabilitate the Charter and invoke Section 33 to keep in check an activist court propelled by a narrow interest group disconnected from the children..Marco Navarro-Genie is president of the Haultain Research Institute. He is, with Barry Cooper, co-author of Canada’s COVID: The Story of a Pandemic Moral Panic (2023).
