00:15:11.720You know, one of the funniest things about the debate over the power of the courts versus the power of the legislatures is about the so-called notwithstanding clause.
00:15:27.420That's part of the Constitution that says notwithstanding other rights and freedoms guaranteed in the Constitution, this law will come into force.
00:15:35.940as in it's a kind of exemption from the courts for certain freedoms that last about five years
00:15:43.260before it has to be renewed. The funny thing about the debates is that people often say
00:15:48.360that undermines the Constitution or it erodes the meaning of the Constitution, to which I say,
00:15:55.700well, it's literally part of the Constitution. Section 33, it is part of the Constitution,
00:16:02.240a kind of fail-safe, a kind of check and balance to the power of unelected judges.
00:16:09.080That's what I think, which is why I'm so excited to see a new report out about this very subject.
00:16:14.840It's by our friend Nigel Hannaford at the Justice Center for Constitutional Freedoms.
00:16:19.720And joining us now to talk about this is the boss of the Justice Center, John Carpe.
00:16:24.440John, good to see you again, by the way.
00:16:26.080I saw you recently at the Vancouver George Jonas Awards Gala for Candace Malcolm.
00:16:32.460So it was nice to see you and all your supporters in Vancouver.
00:16:35.420Tell me a little bit about this report by Nigel Hannaford.
00:16:39.480So a lot of people hate Section 33, the Notwithstanding Clause, and say that it should be scrapped.
00:16:46.560There's a case before the Supreme Court right now arising from Quebec, and it'll be interesting to see what, if anything, the Supreme Court tries to do with it, because I suspect that they are not fans of Section 33.
00:17:01.160But what it does is it allows legislatures to opt out of a court's interpretation.
00:17:07.280A lot of people say, well, this clause helps you to opt out of Charter Rights and Freedoms.
00:17:13.460more specifically more accurately it helps you to opt out of court's interpretation so for example
00:17:20.840in Alberta a year or two years ago the Smith government introduced policies to protect
00:17:27.120teenagers from transgender ideology and said you know you can't get surgery under 18 and you need
00:17:35.680you know parental consent for this or that or parents have to be informed blah blah blah
00:17:40.620And so activist LGBTQ group went to court, got it before a progressive woke activist judge who said that this Alberta legislation violates the charter right of children to keep their parents in the dark about what's going on at school and with their own bodies and so on.
00:18:00.120And so the Smith government responded and said, well, notwithstanding, you know, the court's interpretation, we're moving ahead with this legislation.
00:18:11.700Another example in Ontario, and you'll know this, Ezra, the Ford government reduced the number of city council seats on the Toronto City Council from 55, 57 down to 25.
00:18:25.720you could agree or disagree with that but they went to court and the court ruled that reducing
00:18:31.400the number of seats on toronto city council violated freedom of expression and violated
00:18:36.480the right to vote is absolutely insane now that was eventually overturned by the ontario court
00:18:42.140of appeal but in the interim the ford government said well we're using section 33 to opt out of
00:18:47.180this court ruling we are moving ahead with reducing city council seats down to 25 so that's how it
00:18:54.320works and that's the gist of the report is just to explain that it's a valid part of the constitution
00:18:59.540yeah i mean it's it's so weird that people say it erodes the constitution it undermines the
00:19:04.400constitution not only is it part of the constitution deliberately so but in fact the founders the
00:19:10.740sign the original premiers who signed the document back more than 45 years ago it was essential to
00:19:19.400get their opt-in because the idea of transferring power centuries in the Canadian system and the
00:19:28.140British system before it, Parliament was supreme. So the idea that no, nine unelected, unaccountable
00:19:35.300judges will now replace the wisdom of Parliament was shocking. And the only way it was acceptable
00:19:41.580to so many of these premiers is with this notwithstanding clause of button, sort of like
00:19:46.920a five-year delay button. It doesn't forever exempt you. It just sort of says, for the next
00:19:51.940five years, we're going to ignore the judges on this one. And, you know, in five years, let's see
00:19:56.740how it goes. So it's not surprising that judges would want to remove that. So when you say that
00:20:02.660the Supreme Court is going to review it, that seems a bit of, I don't know if conflict of
00:20:06.860interest is the right word, but of course judges don't want that restraint on them.
00:20:12.400And it would be quite some chutzpah if they actually try and change the Constitution to fit their image of Canada, as opposed to the framers of the Charter themselves.
00:20:25.580I was at a conference in 2007. It was the 25th anniversary of the Canadian Charter of Rights and Freedoms being added to our Constitution.
00:20:35.520So a big constitutional law conference, McGill University, Montreal.
00:20:38.940And they had some of the people that were around in 1982, 35 years later, and many of the speakers said unequivocally that without Section 33, without the Notwithstanding Clause to protect us from juristocracy or judicial tyranny, without that, the charter would not have been added to the Constitution.
00:20:59.340and it is about protecting democracy because you can get uh unelected unaccountable judges
00:21:07.260there's been a big problem in in israel as an aside where you have an activist court
00:21:12.540that starts to review every government decision as to whether the court thinks it's reasonable
00:21:17.240this is huge overextension there and you know there's a role for the courts but
00:21:22.780like anything else they can they can go too far and if you have these unelected unaccountable
00:21:28.300judges you know ruling on whether we have a charter right to bicycle lanes uh you know it's
00:21:35.280there's got to be a good thing on it so it's it's a good part of the constitution because it um it
00:21:41.460does prevent that judicial tyranny that might otherwise exist and that's not to say that the
00:21:48.620use of it is always good i mean you've got uh quebec language laws that uh the supreme court
00:21:55.240has said that these laws are an unreasonable, unjustified violation of free expression that
00:22:02.420English language rights, and Quebec has used the notwithstanding clause to opt out of the
00:22:07.280Supreme Court ruling, that would be an example. I would never suggest that the legislatures are
00:22:11.900always using it correctly. That's not the point. The point is that it's available for use, so we
00:22:17.540don't have the tyranny of the judiciary. Yeah, and I haven't looked at this section in a little
00:22:22.040while but it does have that five-year provision doesn't it so it's not a forever suspension and
00:22:27.620so in the case of Quebec every five years it has to be reasserted and the fact that pretty much
00:22:34.060every party or most of the mainstream parties in Quebec support it that is an indication of
00:22:40.440the political characteristic of the province if both you know if I guess there's three main
00:22:46.440parties there now if all of them support this and there's no real demand for something different
00:22:51.460Maybe there is something inherently different in Quebec when it comes to language and culture.
00:22:55.660And I think that's precisely what the section was made for.
00:22:58.680There is one remaining premier who was alive in these sessions many years ago.
00:23:04.880And it won't surprise you that he was a very young premier for him to still be alive and kicking.
00:23:11.040And it's our friend Brian Peckford, who I know has spoken at Justice Center events.
00:23:16.160He was one of the, I think he's the only surviving premier from that era.
00:23:19.320and he's still sharp as a tack and he remembers every iteration of the debates there and he he
00:23:27.740could tell you adamantly that it wasn't just him but it was essential for basically all the first
00:23:33.200ministers this thing would never have happened without the notwithstanding clause by this thing
00:23:37.720i mean the charter of rights yeah that's that's entirely correct it was an integral part of this
00:23:45.160Now, the other aspect that's interesting is that some of these people that, you know, they wish that Section 33 was not part of the Constitution.