Weasel Clauses and Weasel Provisions
How the Supremes Became Supreme
The American Declaration of Independence - 1776 (re-enforced by the United States Constitution – 1787 and the Bill of Rights - 1791) declares that humans have rights simply because they are human beings, the inalienable rights reference.
Canadians took a typically more wishy-washy approach. Nowhere is this more evident than in the Charter of Rights and Freedoms’ far-reaching weasel clause and weasel provision.
A weasel clause or a weasel provision is an option in a piece of legislation which, if exercised, usually defeats the intent of the legislation.
The Canadian Charter of Rights and Freedoms is, for the most part, a guarantee of nothing, or next to nothing. Most of the lengthy list of rights it purports to protect can be overridden by the infamous notwithstanding weasel clause.
By my count, twenty-five not so inalienable liberties can be curtailed on nothing more than a legislative whim under clause 33(1).
33. (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.
And if that isn’t enough, to make a complete hash of a charter or a bill of rights, the government and the courts can limit any rights allegedly guaranteed under the Charter by invoking the weasel provision squirreled away within the very first clause.
Under the weasel provision of clause 1 (the weasel provision is underlined) all rights are relative; all are subject to the prevailing winds of judicial reasonableness.
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
The weasel provision in the first clause of The Charter has proven the more controversial of the two weasel options.
The Americans had to go to another country (Cuba) to get around their Constitutional prohibitions against arbitrary imprisonment; in Canada it is perfectly legal under the “reasonable limits” provision to keep citizens in jail for years waiting for the wheels of Canadian justice to be set in motion.
It’s not that the Supreme Court of Canada, the final arbiter of what is reasonable, will not take a government to task for a broad, elastic interpretation of what are "reasonable limits".
In 2006, the Supreme Court of Canada overruled a Montréal school board which would not allow children to bring concealed weapons to school (Court Okays Children Bringing Concealed Weapons to School).
This is why in Canada today you have this bizarre ranking of the elasticity of rights under the Charter. On the one hand, jailing citizens accused of a crime for years without the benefit of a trial is considered a “reasonable limit” on The Charter's “fundamental justice right”, clause 7:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
On the other hand, not allowing children to bring concealed weapons to school is considered unreasonable under the freedom of religion clause.
2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
Of the two levels of government which can call upon the weasel provision of The Charter, the Supreme Court has proven the most worrisome!
If you don’t like the government’s use of a weasel provision or a weasel clause, you can always vote them out of power at the next election. Not so for The Supremes who use or misuse the weasel provision of The Charter at their leisure without fear of repercussions for ignoring the will of the people.
The notwithstanding weasel clause and the reasonable limits weasel provision are a legacy of Pierre Trudeau. Like his successor Brian Mulroney, what mattered to these Prime Ministers was doing the deal.
For Brian Mulroney, the deal was Free Trade; for Trudeau, it was repatriating the Constitution and embedding within it his cherished Charter of Rights and Freedoms with its promise of immortality for its author.
To do so he had to compromise, just like the Americans at Philadelphia. But unlike the Americans who made it difficult, but not impossible to improve an already praise-worthy document (the first ten amendments are their Bill of Rights) using a straightforward easy to understand procedure, Trudeau agreed to a complex amendment formula (Procedure for Amending the Constitution of Canada) that pits regional, political and cultural interests against each other thereby making significant amendments impossible.
With his unamendable Charter of Rights and Freedoms, Trudeau irrevocably increased the power of judges at the expense of Parliamentarians.
Because of the extraordinary powers The Charter grants judges to make decisions that are the equivalent of creating new laws, Parliamentary democracy in Canada is slowly morphing into what, for lack of a better word, I will call a Judiciaryacracy, a country ruled by Judges (not to be confused with a country governed by the rule of law).