Day 6

What would you change about the Charter of Rights? Three prominent Canadians weigh in

After Ontario Premier Doug Ford invoked the Charter's 'notwithstanding' clause, a debate has been reignited across the country about why the clause exists and about whether the Canada's Charter of Rights needs to be updated.

Recent debate about the notwithstanding clause has renewed questions about its place in the Charter

Barbara McDougall, left, former Progressive Conservative Cabinet Minister under Brian Mulroney. Norman Spector, top right, former PMO chief-of-staff in the government of Brian Mulroney. Bob Rae, bottom right, former NDP Premier of Ontario and former interim leader of the Liberal Party of Canada. (CP Images / CP Sean Kilpatrick / Norman Spector )

April 17th, 1982, was a big day for Canada.

It was on that day that then-Prime Minister Pierre Elliott Trudeau proclaimed Canada's Constitution repatriated and brought into effect the Canadian Charter of Rights and Freedoms.

But now, 36 years later, there's a lot of new talk about the country, it's values and about whether the Charter needs to be updated.

The debate was reignited after Ontario Premier Doug Ford invoked the Charter's notwithstanding clause in response to a Superior Court Justice decision against a Ford government bill. The court decision ruled that the province's plan to slash the size of Toronto City Council violates the Charter.

The notwithstanding clause was originally included in the Charter so that certain members would sign on. It serves as an out, so that governments can override parts of the Charter. But is the clause still needed? Or are there changes that could be made?

We reached out to three seasoned Canadian political figures about the clause and asked if they could change one thing in the Charter, what would it be?

Prime Minister Pierre Trudeau signs the proclamation giving Canada independence from Britain and repatriating Canada's constitution. (Ryan Remiorz/Canadian Press)

Barbara McDougall was a cabinet minister under Prime Minister Brian Mulroney.

"I don't agree with his [Ford's] use of the not withstanding clause, but I do agree with the fact that it's there to be used.

Doug Ford's use of it in this case is not a useful way to use the notwithstanding clause. It makes a mockery of the Charter.

I understand why it's there. I understand why the Premiers wanted it when the Charter was being written. But I wonder if there shouldn't be some definition of what would qualify and what wouldn't. That would be the only thing I would like to see.

You know, if we could get away without having a notwithstanding clause that would be fine with me, but I don't think we can. So how do we make it work in a way that serve to a higher standard."

Ontario Premier Doug Ford speaks to reporters in Toronto. A debate is currently underway over the use of the notwithstanding clause in the Charter of Rights and Freedoms. (Christopher Katsarov/The Canadian Press)

Bob Rae is the former Premier of Ontario and former interim leader of the Liberal Party of Canada.

"Up until now it [the notwithstanding clause] didn't represent very much because it was very rarely used.

But what troubles me is we now have a government in place that says 'well, whenever we don't like what a court does we're just going to invoke the notwithstanding clause if we possibly can.' And that is very much what Doug Ford has done. And that frankly is what the Charter was intended to stop.

The original draft didn't have it, but Mr. [Pierre] Trudeau was forced to accept it as the price of getting more Premiers on board. But I was a supporter of the original project.

If I could change one thing in the Charter it would be to get rid of the notwithstanding clause."

Norman Spector was the Chief of Staff  to Prime Minister Brian Mulroney and a deputy-minister to former B.C. Premier Bill Bennett during the 1981 constitutional talks.

"The clause has been in the Charter of Rights since 1982. And what has happened since 1982 is that the opponents of the clause, of whom there are many — a lot of people never liked the clause — the opponents of the clause have been really trying to delegitimize its use..

I think we would have been much better as a country to have had a discussion of when it is appropriate to use and when it is not appropriate to use.

The Prime Minister himself said that if the clause is to be used it should be used carefully and with forethought, which means that those who had been hoping to delegitimize it — in other words to make it a spent power — I think have to, at this point, acknowledge that the clause is going to be used. And it would be much better to put their efforts to reshaping it in a way that is more acceptable from their point of view."

To hear the full segment with Barbara McDougall, Bob Rae and Norman Spector, download our podcast or click listen above.