The Sunday Magazine

Politics may increasingly override the rights of Canadians, warns law professor

Section 33, a clause in the Charter of Rights and Freedoms, allows politicians to pass laws that violate the Charter. It is also known as the notwithstanding clause, and in more than three decades, it has been rarely invoked. But law professor Benjamin Berger fears that recent threats to use the clause could signal a dangerous turn.
Prime Minister Pierre Trudeau and Queen Elizabeth II signing the Canadian Charter of Rights and Freedoms in 1982. The notwithstanding clause was an essential section of the document. (Cooper, Robert/Library and Archives Canada)

Benjamin Berger is concerned that a special clause in Canada's Charter of Rights and Freedoms may be used in unjustified ways, to the detriment of the country.

"What worries me is that it reflects a different view of what democracy entails … a view of democracy that is decoupled from rights," Berger, a constitutional scholar, told The Sunday Edition's host Michael Enright. 

The notwithstanding clause — also known as Section 33 — allows politicians to pass laws that override the rights of Canadians. It has been used rarely since the Charter became law in 1982. 

However, the premiers of the country's two most populous provinces — Doug Ford in Ontario and François Legault in Quebec — have said they are fully prepared to invoke the notwithstanding clause whenever they please.

Quebec Premier Francois Legault met with Ontario Premier Doug Ford in Toronto earlier this week. Both Legault and Ford have said they are fully prepared to invoke the notwithstanding clause. (Chris Young/The Canadian Press)

Berger calls for more sober reflection before the notwithstanding clause is invoked. He is concerned that Section 33 is being invoked in illegitimate ways, that could be to the detriment to the country.

"There is, I think, a phenomenon at play in Canada – we see it elsewhere in the world – are we seeing it a little bit in Canada?" he said. 

Click 'listen' above to hear the interview. 

Note: This post has been edited to clarify that Professor Berger believes Section 33's possible illegitimate or unjustified use could be harmful to the country - not the sheer number of times that it may be invoked.