Protecting Charter rights

The old saying goes that you don’t appreciate what you’ve got until it’s gone. That’s particularly true for things like your health. We take it for granted until we can’t do the things we’re used to doing and lose our freedom and independence.

The same can also be said about our Charter of Rights and Freedoms.

We act as if they always were, are, and always will be there for us. Until they aren’t.

That is the state of our Charter rights across the country, as more and more provinces use the notwithstanding clause to suspend Charter rights. Section 33 of our Charter can be used to suspend sections 2 and 7-15 of our Charter rights, which includes pretty much everything that you’d consider to be our basic human rights.

A government doesn’t even need a particularly pressing reason to use Section 33; they just need to declare that they’re doing it.

It can happen just because they say so.

The government doesn’t like a strike? Never mind freedom of assembly, workers can be ordered back to work just because they say so. The government believes that transgender women are a threat to women’s sports? Never mind if there’s no evidence, just ban transgender women because they say so. The government doesn’t like people praying in public? Ban it, just because they say so.

It’s an easy solution to complex problems. We could even use it here. We have a problem with a measles outbreak in Manitoba. Never mind bodily autonomy, just force people to get vaccinated, because the government says so, and there would be no legal recourse if they use the notwithstanding clause pre-emptively.

The law would be effectively shielded from the courts.

These are controversial, complex issues and members of the public will fall on either side of these issues.

Many of them can be phrased as competing rights, such as the bodily autonomy of the unvaccinated versus the security of person for people who could have severe health outcomes if they are exposed to measles.

This is why it’s very important that we have proper guardrails to protect our Charter rights and limit how the notwithstanding clause can be used. These issues deserve to be openly discussed and to have their day in court if needed so that the public can remain informed. We also need to make sure that Section 33 is only used when it’s absolutely necessary and not for ideological purposes.

Earlier this month, Bill 4 was introduced in the Legislature. It’s gone through first and second reading and will be appearing before Committee on March 18.

It seeks to protect our Charter Rights by making sure that any legislation that uses the notwithstanding clause will be forwarded to the courts to get their opinion if it violates the Charter, and if it does, determine if it is demonstrably justified as per section 1 of our Charter.

This is a step in the right direction, but we can do better.

Two amendments to Bill 4 would offer even better protection to our Charter rights in Manitoba. The first would be to require a two-thirds majority vote of the legislature to invoke Section 33.

If the support for using the notwithstanding clause is that broad, we can be fairly certain that its use is necessary and not just ideological.

The second amendment would be to use section 43 of the 1982 Constitution Act that permits any legislature and Parliament to pass a bilateral constitutional amendment that would enshrine the protections above. Any future changes would then need the consent of both the provincial legislature and Parliament. No future government would be able to repeal Bill 4 on its own with just a simple majority.

We don’t appreciate our health until it’s gone. But we can do some simple things to keep our health for as long as possible. We can have a good diet and exercise.

We can also do some simple things to preserve our Charter rights so that both we and future generations can continue to enjoy them. Exercise our democratic rights and fully participate in the democratic process. When enough people speak out, governments do listen.

We don’t appreciate what we’ve got until it’s gone.

Chris Barsanti writes from Grosse Isle, Manitoba.