Comments on religious rights and on the Notwithstanding Clause

By Ulli Diemer


The Canadian Civil Liberties Association sent me a fundraising mailing recently that, in addition to money, solicited my response to a few questions related to their current activities -- a frequent fundraising tactic designed to increase response to mailings by reminding recipients of the valuable work the organization does. I did respond by sending the CCLA some money, but I also raised concerns about their approach to a couple of issues:


1) Practising religion: While I support the right of people to hold whatever religious beliefs they choose, I am not at all sure that I agree that people have a right to “practice religion the way they choose.” Some religious practices infringe the rights of others and do not deserve support. More broadly, there are at least serious questions about how to deal with situations in which an assertion of religious rights comes into conflict with other rights. I would have no problem, in most instances, with saying that people should be able to pray as they choose and dress as they choose. But the much broader, and ill-defined, claim that people should be able to practise religion in the way they choose, regardless of how those practices may impact other people, is not something I could uncritically support.


2) Notwithstanding Clause: I am glad that the Notwithstanding Clause is part of the Canadian Charter of Rights and Freedoms. In most of the instances where it has been used I have in fact disagreed with its use in that particular instance, but that does not change my view that it is a good thing that the power to invoke the clause exists. If I had the ability to change anything about the Notwithstanding Clause, it would be to stipulate that its use require a two-thirds majority in the legislature or House of Commons, to increase the likelihood that its use actually reflects the will of the legislature more generally, and not the will of only one party or one party leader.

Weighing against these concerns is the increasing trend for unelected judges to, in essence, proclaim laws which have never been passed or even discussed by an elected body. That concerns me as well, and on balance, it concerns me more than the use of the Notwithstanding Clause. Canada may fall well short – far short! – of being a real democracy, but at least it is possible for voters to elect, defeat, or influence the legislature. There is no countervailing power – except the Notwithstanding Clause – which can be employed against a higher court which reinterprets laws, or creates them out of whole cloth, to suit the current legal fashion.

In that context, I am also troubled by framing (the CCLA itself is guilty here, I think) which presents “rights” as if they were God-given and indisputable. “Rights” are not objective unalterable facts, in the way that it is a fact to say that Water = H2O or “that bird is a Canada Goose.” The statement “X is a right” is always a claim that is open to debate and interpretation. Such claims are political claims, and, as such, are too important to be left solely in the hands of the courts.

If five members of the Supreme Court, all of whom are well-off, isolated from, and largely ignorant of, the lives of ordinary Canadians, were to decide tomorrow to throw out the Canada Health Act on the grounds that it infringes the right of wealthy people like themselves and their friends to buy access to better health care than is available to those who are not well off, the only way to save medicare would be for Parliament to invoke the Notwithstanding Clause. I would hope that Parliament would do so, and I would say, along with millions of other Canadians, “Thank God for the Notwithstanding Clause!”

Ulli Diemer
June 16, 2024


Related:
Notwithstanding Clause


Keywords: Judicial Overreach



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