When Ontario Premier Doug Ford vowed to use the Canadian Charter of Rights and Freedom’s notwithstanding clause to keep his province’s schools open last fall, Liberal MP Adam van Koeverden called the move “undemocratic.”.While a common sentiment among Canada’s governing elites, academia and various activist groups, it’s also dead wrong..When invoked, the notwithstanding clause involves elected representatives overriding a decision made by unelected judges. That's democracy in action..A review of the opinions of the framers and drafters of Canada’s Charter makes it clear the clause was deliberately inserted to ensure elected officials have the final say on important legislation and as a check on judicial power. Additionally, in more than 40 years, it’s been used fewer than 30 times by the federal and provincial governments combined, a fact which opponents of the clause never mention..When the Supreme Court first tried to invent new substantive rights in 1985, the move was strongly opposed by several individuals who played key roles in creating the Charter, including Jean Chrétien, federal minister of Justice when the Charter was drafted, and two of his senior bureaucrats; assistant deputy minister Barry Strayer and deputy minister Roger Tassé. Despite their central role in creating the document, however, the court dismissed their testimony by saying it deserved only “minimal weight.” Instead, the court gave itself carte blanche to invent new rights or meanings of the Constitution. And so they have done..Since 1985, there have been many examples where judges invented rights previously unknown to those who drafted and signed the document. For example, in 2015 the Supreme Court suddenly declared Sec. 2(d) of the Charter contained a constitutional right to strike, despite several earlier decisions explicitly saying no such right existed. When Premier Ford invoked the notwithstanding clause last year to ward off a strike that would shut down schools, it was only because the court first interpreted the Charter in a way unimaginable to its framers..In addition to the invented right to strike, similar acts of judicial invention include an Ontario court’s ruling math tests for teachers are racist if pass rates vary by the race of the teacher, and a Supreme Court decision that every mass murder and serial killer is entitled to apply for parole..The courts also struck down mandatory minimum sentencing laws for violent crimes on the basis of what they call “reasonable hypotheticals,” a form of play-acting in which judges invent absurd fictional scenarios to strike down otherwise valid laws..Additionally, the oft-repeated myth Canadian judges are not political is false. When judges strike down laws passed by Parliament and impose their own personal views on the country, they are making decisions that are profoundly political in nature..Some of Canada’s most powerful judges have been quite open about their liberal or leftist political views. Supreme Court Chief Justice Richard Wagner boasted about being “very proud” to call his court “the most progressive in the world.” In 2022, Wagner described the Freedom Convoy as “deplorable” and accused convoy protestors of “tak[ing] other citizens hostage.”.Wagner is not alone. His former colleagues Beverley McLachlin and Rosalie Abella made similar incendiary statements, with McLachlin openly feuding with Stephen Harper’s Conservative government and Abella comparing the pro-life movement to support for white supremacy and racial segregation..The Supreme Court’s interpretation of the Charter — disregarding its original intended meaning, inventing new rights, and expanding its power to strike down legislation — made it the most powerful political institution in Canada today. Nine unelected lawyers can nullify a unanimous vote in Parliament, as the court did when it restored the ability of mass murderers to apply for parole on the basis of these murderers’ supposed “human dignity.”.Ultimately, if one believes judges alone should have the final say on every issue of importance to Canadians, then there’s no need for a notwithstanding clause. But if one believes judges can make bad and harmful decisions and Canadians have the right to shape the laws that govern them, then the notwithstanding clause is essential to preserving Canadian democracy and necessary in light of the alarming and harmful decisions of the Supreme Court of Canada..Gordon Lee is a youth leader in the Conservative Values Tomorrow program and an author at C2C Journal, where a longer version of this story first appeared.
