We must break any and every law passed with the Notwithstanding Clause
Minorities are not bound by laws that oppress them.
I’ve always been a big fan of the Charter of Rights and Freedoms. For Americans and other international readers who are unaware, Canadians did not have enshrined civil rights in our constitution until 1982, just over forty years ago. We had a written constitution, of course, but it primarily served the purpose of dividing powers between federal and provincial governments.
But in 1982 the premiers of the various provinces refused to give up the ability to pass laws that would infringe basic civil rights, even though the Charter already included the Reasonable Limits Clause in Section 1 to permit an infringement if it was narrowly tailored and proportionate to accomplishing a specific policy goal. And the courts have many examples of striking down laws for stepping outside those bounds, including an embarrassing example for Doug Ford from this past July.
Very blatantly, the premiers told Prime Minister Pierre Trudeau that they wanted the ability to impose unreasonable limits. And after persuasion from his then-Minister of Justice and future successor Jean Chrétien, Trudeau reluctantly conceded and agreed to include the Notwithstanding Clause in Section 33.
Using this clause, any federal or provincial government can declare with a simple majority vote of the legislature that your basic civil rights no longer exist. It allows the government to declare journalism illegal, to declare religion illegal, to declare an ethnic group illegal, to declare disabled people illegal, to arrest people without a trial, to arrest people without being informed of charges against them, to torture and murder people for any reason they want.
Not only has Québec used this abominable power with incessant frequency, they’re about to do it again, with a ludicrous ban on anyone performing religious prayer in a public space. But finally, the federal government has had enough; Prime Minister Carney has filed a request with the Supreme Court to impose limits on the Notwithstanding Clause.
Naturally? Fascists are mad. And of course they’re angry at the prospect of not being able to use brute strength to oppress minorities, because that’s the entire ethos of fascism! They’re a bunch of bullies who only snuck in the Notwithstanding Clause because Trudeau and Chrétien were too cowardly to stand up against them, and now we have to pick up the fight in our time.
Let me be abundantly clear: The Notwithstanding Clause is illegitimate and invalid. It is a blatant violation not just of international law, but of the most basic fundamental rights and freedoms inherent to all human beings. It is important to remember that rights are not granted by a government, merely recognized.
And if a government does not recognize your basic rights? If a government declares that some citizens are no longer citizens, that they are no longer even considered human? What responsibility do we owe that kind of government? Obedience?
No, of course not. I derive my thoughts on Social Contract Theory from John Locke’s Second Treatise of Government, written centuries ago in 1689:
Whensoever therefore the legislative shall transgress this fundamental rule of society; and either by ambition, fear, folly or corruption, endeavour to grasp themselves, or put into the hands of any other, an absolute power over the lives, liberties, and estates of the people; by this breach of trust they forfeit the power the people had put into their hands for quite contrary ends, and it devolves to the people, who have a right to resume their original liberty, and, by the establishment of a new legislative, (such as they shall think fit) provide for their own safety and security, which is the end for which they are in society.
We consent to society because we believe it will provide equal respect for the safety and liberty of all people who participate in society. If a government embraces tyranny and violates that social contract, the people are no longer bound by the laws, and are entitled to provide for their own defence against the tyranny.
This is why the Notwithstanding Clause is so fucking dangerous. It is blatantly obvious how declaring that a specific minority group is no longer equal would fundamentally corrode the social contract; why would anybody obey a law that declares them to no longer be an equal citizen?
Why should transgender Canadians be bound by Alberta’s laws when Premier Danielle Smith says she will use the Notwithstanding Clause to target them? Why should Muslim or Sikh Canadians be bound by Québec’s laws when Premier François Legault used the Notwithstanding Clause to target them before, and vows to do it again now?
Indeed, when Doug Ford attempted to use the Notwithstanding Clause to declare a strike by CUPE workers illegal and fine each individual worker $4,000 CAD every single day, the union simply rejected the law, and kept striking anyway. The inability for the police to enforce the law against such a massive crowd provided the Canadian people the means to resist tyranny.
What happens when a future Conservative government at the federal level tries to use the Notwithstanding Clause to ban abortion, or gay marriage? Are we really naive enough to think they won’t try? As recently as 2000 the Alberta legislature tried to ban gay marriage, only stopped by it being a federal power; if the federal government had done so, it would still be illegal today.
The most frustrating thing about this debate would be an absolutely horrid piece in the Canadian Jewish News by Joel Ceausu, where Montréal Jews justified a ban against public prayer on the basis that it would hurt Muslims and Palestinians they personally don’t like. Clearly none of these dipshits have read the “first they came for the communists” poem, or they’d understand Jews are next after Muslims.
And that’s really the most blatant example I can give, isn’t it? What if the Notwithstanding Clause was used to pass a law requiring that Jews wear a yellow star everywhere we go? You all supported resistance when that happened in Germany, but do I have an obligation to follow Nuremberg Laws in Canada?
Neither I nor any other minority will continue to live with the Sword of Damocles hanging over our heads. We will no longer tolerate the culture of fear and subservience that White Christians use the Notwithstanding Clause to impose upon us.
We are not bound by any law that uses the Notwithstanding Clause. And no matter whether it targets ourselves or another minority group, all of us must resist every single invocation with whatever means are necessary, until the politicians are too afraid to ever try it again.