Brian Peckford, the last surviving premier who helped forge Canada’s constitutional bedrock and the Charter of Rights and Freedoms, is sounding the alarm. He believes the current federal government has overstepped its bounds, initiating a potentially dangerous challenge to the very foundations of Canadian law.
The dispute centers on Section 33 of the Charter – the Notwithstanding Clause. Currently before the Supreme Court as part of a case involving Quebec’s Bill 21, which restricts religious symbols for public servants, the clause allows a legislature to override certain Charter rights for a five-year period. But the federal government didn’t simply defend the Charter; it actively argued for *limits* on the clause itself.
In a move Peckford calls “insidious,” the government presented arguments suggesting the Supreme Court should restrict how and when the Notwithstanding Clause can be used. They contend it should only be temporary, preventing “irreparable impairment” of rights, effectively seeking to redefine a core element of the Constitution.
This isn’t a simple interpretation of existing law, Peckford argues. It’s a blatant attempt to amend the Constitution without following the established process – a process he helped create. That process demands the consent of seven provinces representing at least 50% of Canada’s population.
During hearings, Justice Suzanne Côté directly confronted federal lawyers, stating they were essentially asking the court to make a constitutional amendment. Peckford is aghast that the government would attempt to achieve such a monumental change with the support of only four of the seven judges hearing the case.
The government’s actions feel like a betrayal of the original intent, according to Peckford. He fears a precedent is being set where constitutional principles can be eroded through judicial overreach, bypassing the rigorous provincial consensus required for legitimate change.
Recent reassurances from the Prime Minister to Quebec’s premier, and an apology from the Justice Minister, attempting to downplay the government’s position, ring hollow. The arguments have already been presented to the Supreme Court, and the court is now deliberating on the government’s request to limit the Notwithstanding Clause.
Peckford believes the Supreme Court should dismiss the government’s arguments outright, refusing to entertain a request that fundamentally undermines the constitutional amending process. He worries the current court, seemingly prioritizing a new legal direction over historical precedent, may be inclined to grant the government’s request.
The stakes are immense. If the court acquiesces, it could open the door to future constitutional alterations achieved through judicial fiat, rather than through the democratic process envisioned by the framers of the Charter. It’s a scenario where the government could achieve its desired outcome while maintaining plausible deniability, claiming it never *intended* to alter the Constitution.
Peckford’s concern isn’t merely about this specific case; it’s about the preservation of Canada’s constitutional integrity. He fears a weakening of the carefully constructed balance of power between the federal government and the provinces, a balance that has defined Canada for over a century.
