Ford goes nuclear, sky falls in Toronto

Source article written by Howard Anglin

Some perspective is in order. If you hear someone shrieking about Ford undermining our constitutional democracy or gutting the Charter, find them a paper bag to breathe into and then calmly explain the following things to them until their heart rate returns to normal.

First, gently remind them that Section 33 is itself part of the Charter, as much as any other section. Then quietly point out in some other free and rights-respecting western democracies like Australia, New Zealand, and the United Kingdom, the courts can’t strike down laws in the first place. There is no need for a constitutional “override” or “exemption” in those countries because their parliaments are not subject to a Charter. It is as though every legislative act is shielded by an implicit Section 33. These countries are among the freest in the world and aren’t permanently on the brink of incipient autocracy.

As Jean Chrétien, who before he became prime minister was the justice minister charged with negotiating the Charter, described it, “[t]he purpose of an override clause is to provide the flexibility that is required to ensure that legislatures rather than judges have the final say on important matters of public policy.” Asked years later if he still favoured the inclusion of Section 33, he answered: “It would be the same situation. It was a philosophical debate. Because some would argue that in a society the elected people have to be supreme – not judges – and I subscribe to that.”

Chrétien is right. Section 33 is an admonitory constitutional reminder that if judges want to play politics, legislatures can too. Frankly, considering the aggressively usurpative appetite of Canadian courts since 1982, Section 33 should have been used much more often, as its mere presence in the Charter and sparing invocation has done nothing to chasten courts inclined to act as a supra-legislature.