Opinion: ‘Notwithstanding’ support for the Charter, there’s work to do

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While Canada’s history has been marked by divisive constitutional disputes, one part of the Constitution brings us together: the Charter of Rights and Freedoms. The Charter is seen by more people as being very important to their identity as Canadians than any other institution or symbol. It is held in high esteem in every region of the country, including Quebec.

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It is not surprising, then, that the steps taken by the governments of the country’s two largest provinces, Ontario and Quebec, to override the Charter remain controversial. These steps themselves are perfectly constitutional, making use of the Charter’s so-called “notwithstanding clause” that allows governments to enact laws that infringe on certain rights. But they nonetheless sparked vocal opposition.

In Ontario, public outcry was so strong that the government quickly withdrew its proposed use of the clause to legislate an end to a strike by educational support workers. The government of Quebec has held more steadfast with its use of the notwithstanding clause to protect its laws on language and “laicity” (secularism) from being struck down by the courts. But in response, the federal government has been urged to find ways to stop provinces from using the notwithstanding clause pre-emptively to shelter their laws from court challenges.

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At first glance, opponents of the notwithstanding clause might take encouragement from the findings of the most recent Confederation of Tomorrow 2023 survey. It finds that Canadians are much more likely to say that the Supreme Court (53 per cent) and not Parliament (19 per cent) should have the final say when it comes to a dispute over whether a law violates the Charter. Yet two nuances stand out. One is that a significant minority (28 per cent) are undecided, suggesting they are open to being swayed either way. The other is that opinion in Quebec is shifting slightly away from siding with the Supreme Court. Three years ago, in 2020, there was a 29-percentage-point margin among Quebec francophones in favour of the Court overruling Parliament. In 2023, the margin is 18 points.

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The same patterns appear in the case of a question that asks whether Parliament should be allowed to use the notwithstanding clause to overrule the courts when a law is struck down on the grounds that it violates the Charter of Rights and Freedoms. Again, Canadians are more likely to side with the courts, with 46 per cent saying there should be no override, compared to 27 per cent who say there should (another 27 percent are undecided). But in 2023, for the first time in our surveys, the proportion of francophone Quebecers who support the override (36 per cent) edges out the proportion that oppose it (33 per cent).

In Ontario, despite the recent controversy over the proposed back-to-work legislation, opinions have not shifted. In 2020, 50 per cent of Ontarians say governments should not have an override option; in 2023, the figure was virtually identical. Ontarians remain much more likely to oppose governments overriding the courts on Charter matters than to support it. But the outcry against the Ford government’s attempt to duck out on collective bargaining has not tilted opinion any further against the notwithstanding clause itself.

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Despite Canadians’ support of the Charter and the preponderance of opinion in favour of the courts’ role in striking down laws that violate it, opponents of the override clause still have work to do. A significant minority of the population remains unsure as to whether governments or the courts should have the final say in Charter cases, and in Quebec specifically, opinions are evenly divided, with signs that support for the override is edging upwards.

Legal arguments notwithstanding, in the domain of public opinion, the matter is far from settled. The case remains to be made that the compromise struck by first ministers in the early 1980s, when the Charter was drafted allowing for an override, is no longer fit for purpose.

Charles Breton is the executive director of the Centre of Excellence on the Canadian Federation at the Institute for Research on Public Policy. Twitter: @charesbreton. Andrew Parkin is the executive director of the Environics Institute. Twitter: @parkinac.