Notwithstanding

Just because you can do something doesn’t mean you should.

It is being reported that the Alberta government intends to introduce three bills that include the use of the notwithstanding clause to pre-emptively override constitutional rights for transgendered persons.

I couldn’t agree less with the content of these bills. It continues a troubling trend of big government “solutions” that stigmatize and penalize small populations that are seen as easy targets. What happened to the libertarian Danielle Smith of 2012? Why would a so-called conservative government be so heavy handed with government intervention into so many institutions and so many private lives?

Of course, governments scapegoating minority groups is not new. It’s a tradition as old as hate. To combat this, for centuries liberal democracies have put checks on majority rule to protect minorities from this scapegoating: rule of law, charters of rights, and political norms around restraint.

This is a delicate balancing act. The line between minority rights and an unreasonable frustration of majority rights is not always clear. Every issue is different. Canada, with our blend of written and unwritten constitutional law, settles these matters through the courts.

Most famously, in Canada, a government imposing limits on rights is subject to the Oakes test.

This framework was established by the Supreme Court for determining whether a limitation on a Charter right can be justified under section 1 of the Charter, which allows “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

The test has two main parts: first, the law or government action that limits a right must pursue a pressing and substantial objective; second, the means chosen must be proportionate. That is, the act must actually be connected to the objective, the infringement on rights must infringe as minimally as possible, and the public benefits must outweigh the downsides.

There’s a misconception that the notwithstanding clause allows the government to put reasonable limits on the charter of rights and freedoms.

But let’s be clear: the constitution, by default, allows reasonable limits.

The use of the notwithstanding clause, by definition, is to allow government to impose unreasonable limits. The notwithstanding clause serves a purpose. But the clause was supposed to be so politically severe that only issues with overwhelming majorities could possibly prop up its use.

This is the key point. The primary defence of the use of the notwithstanding clause seems to have become: it’s in the constitution and I’m allowed to do it. Over time, its use has become seemingly benign.

But it’s not, and as any parent tires of telling a young child, just because you can do something does not mean you should.

The protections we have for minority rights are rule of law, our Charter of Rights, and political norms around restraint. Rule of law and our Charter will not, it seems, help us in this moment.

Over to us, Albertans, as the last line of defence. We need to enforce political norms around restraint. If you’re displeased, get loud - make your displeasure known. Mete out political consequences. Even if this is not the specific issue that animates you, consider whether you feel the government’s concern is so grave as to override the Charter. What happens to those least able to defend themselves happens to all of us. All of our rights are on the line.

We are a free people. As Albertans, we need to push back against pre-emptive, unreasonable limits on rights. You never know – your rights might be next.