Section 1 & 2 of The Canadian
Charter of Rights and Freedoms states that certain freedoms are
guaranteed and are subject "only to such reasonable limits that
prescribed by law as can be demonstrably justified in a free and
democratic society." Among these freedoms is are "freedom
of conscience and religion..." These sections are vaguely similar
to the free exercise clause of the 1st
Amendment of the U.S. Constitution.
Much of the Canadian Charter is not worth the paper that it is printed
on, because of Clause 33, the "not withstanding" section.
It allows the Federal or any
Provincial government to opt-out of any portion of the Canadian Charter
of Rights and Freedoms which deals with:
fundamental freedoms of religion, speech, the press, free assembly
guarantees of equality
To our knowledge, this loophole is unique in the world. The Charter
basically says that every person is guaranteed equality and freedom, but
that the Government of Canada or of any of the provinces can withdraw them
at any time by simply passing restrictive legislation. They would have to
declare that the legislation is in direct conflict with the charter, and
they would have to renew the legislation every five years. When the
Charter was introduced in the early 1980's, former Prime Minister, Pierre
Trudeau called the "not withstanding" clause a tainted
compromise. Former Prime Minister Brian Mulroney said that it reduced the
worth of the Charter to that of a piece of scrap paper.
There have been a number of implementations and suggested
implementations of the not withstanding clause:
Quebec: The provincial government passed the Charter of
the French Language in 1977. Bill 101 stated that French was to be
the only language allowed on commercial signs in the province. (French
is the dominant language in Quebec, but many citizens speak English.)
When the Supreme Court ruled in 1988 that Bill 101 was
unconstitutional. Premier Robert Bourassa introduced Bill 178. It used
the "not withstanding" clause to override the
Canadian Charter's guarantee of freedom of speech. The bill required
that all commercial exterior signs be in French only; English signs
were allowed inside the stores.
Alberta: The provincial government passed a Sexual
Sterilization Act in 1928 (5 years before Germany). From 1929-OCT
to 1972-FEB, 2,832 sterilization procedures were performed in the
province. "Some of the people considered "unfit" to
bear children were new immigrants, alcoholics, epileptics, unwed
mothers, the poor and native people."1By
1998-MAR, almost 750 victims had initiated suits against the
government. On 1998-MAR-10, the Alberta legislature introduced Bill 26
which would have used the "not withstanding" clause
to override the Charter of Rights and Freedoms and prevent the victims
from suing the government. Massive
outcries from an enraged public and media motivated the government to
withdraw the bill the next day.
Alberta: In 1998-APR, the Supreme Court of Canada
ruled on a case involving a gay lab instructor
who was fired by his employer because he was gay. He worked for a
college run by the Christian Reformed Church. The court decided that
the Alberta Individual Rights Protection Act violated the
federal Charter of Rights and Freedoms. They "read
into" the existing law a clause giving equal rights for
persons of all sexual orientations: heterosexual, homosexual and bisexual.
The Government of Alberta was
pressured to pass legislation using the "not withstanding"
clause to strip homosexuals of equal rights. At the time, Premier
Klein decided to abide by the Supreme Court ruling. However, he announced that if the Federal courts extend
equal marriage rights to
gays and lesbians, that he would invoke the "not withstanding"
clause. It was an empty threat, because the provinces and territories cannot
define who can marry and who cannot. That is up to the federal government. The
Feds legalized same-sex marriage in 2005-JUL.
Canada has no equivalent to the establishment clause in the 1st Amendment of
the U.S. Constitution.