There were media reports that the 2021 federal election needed a big new idea to get Canadians more enthused about the election, since so many are not. On social media and on the Ipolitics online journal of the Toronto Star, I proposed a big idea that could have galvanized Canadians.
One or more of the parties in the election could have promised to start a constitutional-amendment process to require the following: Before they can override the rights enshrined in the Canadian Charter of Rights and Freedoms by passing a notwithstanding law under Section 33 of the Charter, federal and provincial governments must obtain a super-majority (at least two-thirds) of elected members in their respective legislatures.
The rights and freedoms that couldn't be overridden without a super-majority — because they shouldn't be at the mercy of a single leader or party who might command only a small majority in the legislature — are those in Section 2 and Sections 7 to 15 of the charter: the fundamental freedoms of expression, association, and assembly; the right to life, liberty, and security of the person; and the cherished guarantee of equality to the most vulnerable in our society.
We've seen how the notwithstanding provision has been abused by the Ontario government. Premier Doug Ford threatened to use it to shrink city council in the middle of the Toronto municipal elections. More recently, he used it to limit election spending by third-party groups, which was mainly intended to shield him from attacks by unions. Provincial premiers and leaders in the Yukon, Saskatchewan, Alberta, and New Brunswick have either used it or threatened to use it, as well.
The notwithstanding law has been used by successive governments in Quebec, both separatists and federalists, ostensibly to protect the French language, and, more recently, to prohibit the wearing of religious symbols by public officials.
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