The notwithstanding clause makes some Charter rights more equal than others

The Canadian Charter of Rights and Freedoms allows for a legislature to override certain Charter rights – but not others. Why?

Section 33 of the Charter sets out the “notwithstanding clause”.  It permits a legislature to declare that a law shall operate notwithstanding a provision in sections 2 and 7-15 of the Charter. Thus, it applies to the fundamental freedoms (s. 2), the legal rights (ss. 7-14), and the equality rights (s. 15). By omission, it does not apply to democratic rights (ss. 3-5), mobility rights (s. 6), and language rights (ss. 16-23). Here is a basic fact about the structure of the Canadian Charter of Rights and Freedoms: not all Charter rights are created equal.

This begs the question: why are these rights not subject to the notwithstanding clause? What’s so special about democratic, language and mobility rights? What do these rights have in common?

There isn’t a great deal of legal theory about this topic, but there are some clues.

Some argue that s. 33 itself is the result of crass political compromise, and that the exclusion of certain rights from its ambit is also the product of compromise, or maybe just political accident.^[1] Certainly, the historical record demonstrates that s. 33 and its ambit were indeed the result of political compromise. What does this tell us about these rights?

A dominant line of jurisprudence at the Supreme Court of Canada seems to impute some “special” status to these rights. In Sauvé, regarding democratic rights, McLalchin CJC (writing for the majority) stated: “the framers of the Charter signaled the special importance of this right not only by its broad untrammeled language, but by exempting it from legislative override under s. 33’s notwithstanding clause”. ^[2] The majority in Sauvé never articulated the meaning of “special”. The majority’s approach in Sauvé has been adopted and affirmed in subsequent Supreme Court jurisprudence.^[3] In 2019, in Frank v Canada (Attorney General), Wagner CJC affirmed this approach to justify a broad interpretation of the right to vote for Canadians living abroad.^[4]

Most recently, the majority opinion in Conseil scolaire francophone de la Colombie-Britannique v. British Columbia continues to develop this theory, this time in the context of s. 23, minority language education rights. Wagner CJC, again writing for the majority, stated as follows:

“…s. 23 is not subject to the notwithstanding clause in s. 33 of the Charter. The decision in this regard reflects the importance attached to this right by the framers of the Charter as well as their intention that intrusions on it be strictly circumscribed”.^[5]

What is so “special” about these rights, and why do they deserve a broader scope or more circumscribed  intrusion? Surely they cannot be more fundamental as human rights --- it is not obvious why the right to vote or move between provinces is more fundamental than the right to life, liberty and security of the person, for example.

However, there may be something “special” about these rights in relation to Canadian federalism.

For instance, the non-derogable rights are the only rights the Charter reserves for Canadian citizens alone. Indeed, these rights are fundamental to citizenship in Canada. They are the rights that every citizen of Canada has – no matter where in Canada they live. Democratic rights ensure that all Canadian citizens have equal rights to participate in the democratic process—and this, in every province. Mobility rights ensure that Canadian citizens can move freely between provinces, and have the same rights as Canadian citizens in every province. Language rights also play an undeniable role in shoring up the federation—they serve a “unifying purpose”, and they support mobility rights.^[6]

They form part of the connective tissue of the Canadian federation. Democratic rights, mobility rights, and language rights can be seen as part of what holds Canada together as a federation.

Marion Sandilands has expertise in the Charter, and teaches Canadian Federalism Law at the University of Ottawa. For all your constitutional questions, contact Marion Sandilands.