Kevin O’Leary and the notwithstanding clause in the Charter

I’m a guy that is inclined to vote Liberal when a federal election comes around. Not invariably, but it’s where I’m most likely to end up. Recently however, I had been interested in a candidate that is running for leadership of the federal Conservative party.  Kevin O’Leary is a well known canadian character, doing a lot of public interviews, appearing on Dragon’s Den (a great TV show), and apparently being very successful in business.   Most of my exposure to Kevin has been through Dragon’s Den.  He’s a sharp tongued guy who often rides the applicants a bit hard, but there’s some real good sense in what he says, and he’s clearly got the business skills to back up his commentary.   For that reason, I had been pretty impressed with him.   However, just a few days ago I heard Kevin on CBC radio.  He was commenting on an issue that is frequently in the news recently, about refugee claimants seemingly jumping the queue by crossing the Canadian border illegally.   I allow that this may be a problem,  but compared to a lot of other issues, it’s a pretty small problem.   When I think about things like the fentanyl crisis, refugees crossing the boarder seems pretty tiny indeed.   As I understand matters, refugees crossing the border illegally are usually arrested pretty promptly, and hence it’s difficult to see how these refugees really have any significant impact on the lives of your average canadian at all.  Given that Canada is a nation having one of the highest standards of living in the world, I think there’s fair argument that we have a duty to help up those that ask, which would include refugees.   However, what Kevin O’Leary suggested was a change to legislation to prevent the queue jumping, and said:

Mr. Trudeau has the ability to do this by using something called the notwithstanding clause,” O’Leary said in the video. “His dad [former Liberal prime minister] Pierre Elliott Trudeau put this in the Constitution in 1982 to give Canadian governments the authority to respond to extraordinary situations like this one and put in place policies that are reasonable for a fair and democratic society like Canada.  (this quote drawn from a Huffington Post article to be found at Huffington Post

There has been discussion as to whether in fact this clause in our Charter of Rights and Freedoms could be applied to what Kevin refers to.  Some say he misunderstands the application of the charter, and this particular provision, to the issue.   That however is not the concern that I was left with.  I will not be voting for Mr. O’Leary if he should become the candidate for the Conservative Party because I believe his misunderstanding is not of the application of a section, but rather an entire tenant of the Charter.

Section 33 of the Charter of Rights and Freedoms provides:

Exception where express declaration

  •  (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.

  • Operation of exception

    (2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.

  • Five year limitation

    (3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.

  • Re-enactment

    (4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1).

  • Five year limitation

    (5) Subsection (3) applies in respect of a re-enactment made under subsection (4).

As should be obvious, this section is a pretty significant one, and a potentially dangerous one as well.   The Charter sets out those values that are thought to be absolute foundations of Canadian Society.   The protections set out there are fundamental to what we term a Free and Democratic Society.   They are described as the fundamental rights and freedoms.  This is the stuff that forms the cornerstone of our society.     Kevin appears to be suggesting that we should invoke a clause that has the effect of negating those very rights and freedoms, and that we should invoke that clause so that legislation may be aimed at people who arrive in our nation with the intention of claiming refugee status.  Respectfully, this is the very situation where the notwithstanding clause should not be applied.   The Charter of Rights and Freedoms is at its most powerful in the protection of those who are marginalized in our society, being those who are not very popular, perhaps criminal, those who have different beliefs or values, or simply are not part of the “mainstream”.   That Kevin would suggest it be applied to the present situation says to me that he regards the values contained in the Charter to be preferential ones, rather than fundamental, and this is surely not the intent of our Charter.

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