Charter Rights or Mere Interpretations?

Author: Tim Platnich

Date: April 1, 2026

This is not an April fools day joke, but some may think it is!

The press has been ripe with rhetoric about how s. 33 of the Charter, the dreaded 'notwithstanding clause', will lead to tyranny when Charter rights are overridden by provincial legislatures. [1] This follows from the recent proceedings before the Supreme Court of Canada (SCC) concerning Quebec's Bill 21 in the case of Hak, et al v. Procureur Général du Québec. [2]

But is this truly the issue?

Let's consider how things typically unfold. A provincial legislature passes a law. Some activist group, either in its own name or using a person as a nominal plaintiff, or both, takes issue with the law on Charter grounds and brings a court challenge. Straight-away an injunction is sought to suspend the operation of the legislation. Injunction applications take time, often months to be heard. In the meantime, an interim-interim injunction might be sought to suspend the legislation until the full injunction application is heard.

The injunction application is heard by a single superior court judge. As part of the injunction process, the judge will be required to consider whether there is an arguable case in favour of the injunction. That consideration will call for at least a superficial interpretation of the Charter rights at issue.

If an injunction is issued, the legislation is frozen until a full hearing on the charter breach allegations is completed. This will take months if not years. [3] When the full hearing on the merits occurs, front and centre will be the judge's interpretation of one or more Charter rights. The judge will make a decision interpreting the charter rights. The judge's decision is really the opinion of just one person. The strength of that opinion will depend on whether there is binding judicial authority on the point and whether the judge follows that authority. Will the judge be guided by judicial authority and settled law or will the judge engage in making a policy decision concerning the legislation at hand? Certainly the plaintiff's arguments will focus on policy. The plaintiff will, as my former partner, the deceased Bill Major Q.C. would say, 'parade the horrors' of what will happen if the law is allowed to stand. We saw some parading of horrors before the Supreme Court of Canada recently with the arguments being made in the Yak case concerning the use of s. 33 in hypothetical cases. [4] Even certain members of the SCC, usually quite in favour of hypotheticals, expressed concerns to counsel that maybe counsel were 'jumping the shark' with their extreme imaginings - my words not theirs. [5]

A decision by one judge in striking down legislation is an opinion about a charter right. The opinion may be correct in law, or not. It may be a good opinion on policy grounds, or not. The effect of the opinion may be to abort the legislature's policies in certain areas where the governing party was elected to take action. In other words, the effect of the decision may be a judge's substitution of policy for that of the democratically elected legislature.

The government will have a right to appeal. The appeal process can take a year or more. [6] Unless a 'stay' is granted concerning the original decision, the original decision remains in effect until the appeal is heard.

It may come to this: the legislature passes a law believing, based on legal opinions received, that the law does not infringe Charter rights. One unelected judge forms a different opinion. The will of an elected legislature, and the people it represents, is thwarted by one person's opinion.

Let's assume that the legislature then re-passes the legislation, this time invoking section 33 of the Charter. Is the legislature truly overriding a Charter right or is it overriding an opinion of one judge as to what the Charter says?

Some will argue that the law is what a judge says it is. Before the Charter, this was only partially the case. If a judge, or even the SCC, interpreted legislation in a way that Parliament or a legislature disagreed with, these bodies could change the legislation to accord with their actual intent. In other words, the law was what the legislative bodies said it was, not the judge. There was an exception related to constitutional provisions of the British North America Act (BNA Act) (as it was then known). But even in that case, the Parliament of the UK could amend that legislation. Hence, a legislative body still ultimately decided the law. When the BNA Act was 'repatriated' together with the implementation of the Charter, the role of the courts was expanded, in some cases conditionally, by giving them jurisdiction to strike down legislation that offended the rights and freedoms set out in the Charter. I say conditionally, because s. 33 was part of the mix. By virtue of this section, the rights of legislative bodies to be the final word regarding certain Charter rights - or at least the judicial interpretation of them - was preserved.

Charter rights in certain areas are a matter of settled law. Many Charter rights are grounded in centuries of English common law. The right not to be unlawfully detained goes back to the early days of 'habeas corpus' which arguable traces back to Magna Carter in 1215 or even before that. But other Charter rights are new and are products of recent judicial decisions and not express Charter language. There is nothing in the Charter that says public employees have a right to strike. This is strictly a judicial creation. Where a legislature overrides a judicially created right, not expressly found in the Charter, is the legislature really overriding a Charter right or is it overriding an opinion about a Charter right? Even the SCC has waffled on whether the Charter's freedom of association includes a right to strike. In other words, the court's opinion changed over time.

One horror being paraded is 'Trumpism'. It is argued that s. 33 could be used to by a tyrant like Trump. This is a false narrative. Trump is acting by executive order. Section 33 requires a legislative override. That is, in Canada, legislation must be passed to override a Charter right. Here, an executive order - known generally as an 'Order in Council' that breaches Charter rights would not have the protection of section 33 without a specific and express legislative provision for the override. If the US had the equivalent of section 33, could Trump get Congress to pass legislation allowing him to override constitutional rights? It's doubtful. Indeed, executive orders in the US have gained popularity since and including the Obama presidency precisely because Congress could not be relied upon to pass the authorizing legislation.

At the end of the day it comes down to who one trusts more: elected representatives or the judiciary. Both can act tyrannically. However, in the case of elected representatives, the people have the option of 'throwing the bums out' at the next election, usually within about 5 years. A newly elected government can repeal unsavoury laws. Not so with the judiciary and its decisions. Judges are appointed for a term that ends when they turn 75. Decisions at the highest levels can be binding for decades if not centuries. Without the section 33 override, a constitutional amendment might be required to undo a decision of the SCC.

In the above analysis I have assumed that section 33 is used by a legislature to override a judicial decision that it disagrees with. Section 33 is not always used this way. In Quebec, it is almost always used prophylacticly. That is, included from the start in the legislation. Alberta and Saskatchewan have recently done likewise. This is not ideal but it may be practical given the current state of things. Where virtually every controversial law is challenged on the basis of the Charter; where injunctions are invariably sought and often obtained; where it takes months or even years to settle these questions given how our courts currently operate; and given that governments are elected to govern and not to simply be defendants in litigation; can governments be blamed for short-cutting the process, particularly where they will end up in the same place: the legislation is operable due to the use of the notwithstanding clause.

Lot's to think about.

[1] see for example https://www.cbc.ca/news/canada/montreal/key-takeaways-supreme-court-challenge-bill-21-9.7143807

[2] for a summary in English of some of the previous proceedings in this case concerning the applications for an injunction see https://canliiconnects.org/en/summaries/70246. Unfortunately, as far as I can tell, the actual decisions concerning the case in the Quebec Courts are only in French.

[3] The Hak case now before the SCC has been ongoing since 2019. In that case, however, an injunction was refused. The only thing that likely prevented the injunction was the use of the notwithstanding clause. Even with that clause in the legislation, it was challenged!

[4] see link under note [1]

[5] see link under note [1]

[6] see note [3]