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<\/figure>\n\n\n\n<\/a><\/p>\n\n\n\n The decision was a surprise to Canadians, where any number of similar challenges had failed.<\/p>\n\n\n\n Time after time during the COVID-19 pandemic, Canadian governments imposed extraordinary public health measures that seemed to be naked infringements on Canadians\u2019 charter rights. Mandated church closures that violated protections on \u201cfreedom of religion.\u201d Bans on gatherings that curbed \u201cfreedom of association.\u201d Border and travel strictures that undermined charter guarantees on mobility rights.<\/p>\n\n\n\n But the courts didn\u2019t care<\/a>. Whenever a pandemic case hit the docket, courts \u201cerred too far on the side of deferring to government,\u201d Joanna Baron, the executive director of the Canadian Constitution Foundation, told the National Post.<\/p>\n\n\n\n Sunday marks the 40th anniversary of Canada repatriating its constitution, a process that included passage of the Charter of Rights and Freedoms. The charter has often been praised as one of Canada\u2019s leading modern accomplishments and its \u201cgift to the world.\u201d<\/a> But it\u2019s also one of the world\u2019s only constitutions that explicitly gives the state a roadmap on how to quash the very \u201cfundamental freedoms\u201d it cites. It\u2019s why, four decades in, not everyone is inclined to cheer it as a bulwark of liberty.<\/p>\n\n\n\n \u201cI cannot think of any freedom \u2026 that the charter has brought to us,\u201d said John Carpay, president of the Justice Centre for Constitutional Freedoms, a group that has been particularly active in challenging pandemic mandates and defending the organizers of Freedom Convoy. \u201cWe are less free today than 40 years ago,\u201d he said.<\/p>\n\n\n\n If governments are looking to do an end-run around charter-enumerated rights, there are two primary sections of the document they turn to. Section 1, which is literally the first line of text in the charter, explicitly states that rights and freedoms are protected in Canada only to \u201creasonable limits.\u201d<\/p>\n\n\n\n According to an official government of Canada guide to the charter, the purpose of this section is to remind Canadians that \u201crights can be limited by law so long as those limits can be shown to be reasonable in a free and democratic society.\u201d<\/p>\n\n\n\n The notwithstanding clause allows provincial governments to knowingly pass legislation that treads on a fundamental freedom.<\/p>\n\n\n\n If such a legislative override had existed in the U.S. Constitution, many of the most iconic Supreme Court decisions of the civil rights movement might not have mattered. Brown vs. Board of Education \u2014 the 1954 decision that struck down school segregation \u2014 could simply have been ignored by states invoking the notwithstanding clause.<\/p>\n\n\n\n In Quebec, it\u2019s how provincial governments can consistently maintain legislation that are a pretty obvious curb on fundamental freedoms. Bill 21, a provincial law passed in 2019, bars government employment to any Quebecer who wears religious garb such as turbans or hijabs. Any charter challenge against Bill 21 would likely be a slam dunk on the \u201cfreedom of religion\u201d clause, but Quebec would simply be able to soldier on with the law by invoking the notwithstanding clause.<\/p>\n","protected":false},"excerpt":{"rendered":" The charter that defends rights, but also tells government how to quash them Not everyone is inclined to cheer the charter as a bulwark of liberty. ‘We are less free today than 40 years ago,\u201d’ said John Carpay, president of … Continue reading