Did someone forward this to you? Subscribe free here!

TOD’S RANT
FREEDOM, WITH AN ASTERISK

​​Imagine you’re buying a smoke detector. You want it to keep your family safe. But this one has a giant red button that says “Ignore Fire,” and anyone in the house can hit it whenever they feel like it.

What’s the point of having the damn thing at all?

Meet Canada’s “Notwithstanding Clause.”

It’s the constitutional equivalent of installing a seatbelt, then clipping it behind your back so it doesn’t mess up the fit.

You may have heard about it recently because the Conservative leader, Pierre Poilievre, who wants to be the next Prime Minister, said he’ll invoke it if elected. No prime minister has ever used it.

The clause, which is actually called Section 33, lets governments—federal or provincial—override fundamental rights. Not all rights—it can’t override the right to vote or Indigenous treaties. But it can press pause on some of the big ones: freedom of expression, freedom of religion, freedom of assembly, and equality rights. 

Normally, if a court rules that a law violates one of those rights, the law is struck down. But if this notwithstanding clause escape hatch is invoked, it’s like the court ruling never existed.

Contrary to what a lot of people think, this isn’t a technical loophole being exploited. It was baked into the Charter from day one.

Roots in Compromise

Back in 1981, the Prime Minister was Justin Trudeau’s father, Pierre Trudeau.

He wanted a Charter that entrenched rights on paper. But the provinces weren’t sold, and it was all because of judges.

In Canada, judges are not elected, they’re appointed by a committee made up of people representing the judiciary, law enforcement, and the general public. This means judges rule by what’s fair, not by what’s popular.

The provinces didn’t like that unelected judges could overturn laws passed by elected governments. So they pushed for an override button—something to keep the final word in political hands, not judicial ones.

That fight nearly blew up the whole constitutional deal. So a compromise was proposed. Canada would get its Charter, but also some wording that let governments push back, at least temporarily. Trudeau hated it, but he knew the Charter wouldn’t pass without it. So the federal government agreed—with one condition: any use of the clause to override people’s rights expire after five years unless explicitly renewed.

Before the ink was even dry on the Charter, Quebec invoked the clause. Like, right away, mostly as a “fuck you” to Trudeau since the province hadn’t agreed to the new Constitution. It was performative mostly; Quebec didn’t end up renewing it when it expired

But for decades, this clause was viewed as a last resort—something governments should avoid unless absolutely necessary. Unless a legitimate emergency was happening and there was literally no other choice.

Lately, that’s changed.

Slippery Slopes

In recent years, we’ve seen it invoked more often and more aggressively. 

• Saskatchewan used it to uphold back-to-work legislation, when courts said it violated people’s right to freedom of association. 

• Quebec used it to ban public servants from wearing religious symbols, like a turban or a Muslim headscarf.

• Ontario used it to keep education workers from striking—then chickened out after public outrage melted their phone lines.

• Saskatchewan used it just two years ago to prevent schools from recognizing students’ chosen pronouns.

Each time, the government avoided a legal fight by invoking the clause and short-circuiting the courts. 

One government that’s never used it so far, is the one that created it: the federal government. There’s been an unspoken convention that the Parliament should set a higher bar.

Truth is the First Casualty

Which brings us back to Conservative leader Pierre Poilievre.

In 2022, the Supreme Court of Canada ruled that imposing consecutive life sentences violates an offender's Charter rights.

Poilievre says if elected, he’ll use the notwithstanding clause to bypass those rights and do it anyway. In his speeches, he says murderers are being let out on the street in droves after serving the minimum term of their sentence, but that’s not true. There is still a strong parole system here. The worst of the worst never see the light of day.

Poilievre has been unable to provide a single example of an incident when a mass murderer has been left out at their minimum sentence term.

It might be helpful to compare the Nothwithstanding Clause to another legislative escape hatch: Canada’s Emergency Act. That law gives government the ability to regulate travel, take property, and some other things. But it doesn’t suspend charter rights. It requires a legitimate emergency. It only lasts for 30 days for most uses. And after it’s invoked, a whole series of accountability processes reviews it all.

It’s been used once, three years ago, during the convoy protests. Later accountability reviews found it probably shouldn’t have been.

One of the loudest voices against its use? Conservative leader Pierre Poilievre, who complained that the government used it to… wait for it… suspend Charter rights.

To him, the Emergencies Act, with its layers of oversight and an expiration date shorter than a TikTok trend… That’s tyranny. But the Nothwithstanding Clause which lets you override Constitutionally protected rights and freedoms for five years with no review… That’s… leadership?

Unchecked Overrides

Whichever party you support, the whole clause to me seems very… I don’t know… un-Canadian: A tool that erases the very purpose of a Charter of Rights. If rights can be overridden so easily—without even an explanation—are they really rights? Or just policy preferences, subject to change when politically inconvenient?

Worst of all, the groups most affected by these overrides are often minorities—people without the political power to fight back through elections. That’s why we have a Charter: To protect fundamental rights even when they’re unpopular.

Every unchecked use of the Notwithstanding Clause teaches the next government there’s no cost to breaking the rules—just a shortcut through them.

Vanishing Promises

History tells us that rights never disappear all at once.

They erode—quietly, clause by clause, until one day, we look back and wonder when we stopped caring.

The Notwithstanding Clause was supposed to be the exception. If it becomes the rule, the Charter won’t fail all at once. It will fade.

And with it, the promise it once made to every Canadian: you are safe here.

First, the Good News 🙂

• What began as a simple video has become a boon for Nanaimo, a city on Vancouver Island with a population of 106,000. Tod Maffin (that’s me!) never imagined his TikTok video would spark a friendly American invasion of the city. [read]

• Max Gallant has been a musician for most of his life, but he didn't start singing until he was in his 80s. And now, just before his 90th birthday, he's releasing his first album called Please No Green Bananas (I'm 90). [watch]

  

• In the shadow of Donald Trump's trade war and Canada's retaliatory tariffs, Ontario's wine industry is seeing a silver lining, with sales up more than 40%. [read]

• An Ontario environmental charity is is using an app to “gamify” helping the environment. The app offers users the chance to win money by cleaning up litter. [read]

Election News 🗳️

• The number of people who took advantage of advance voting in the federal election this week shattered records — a 25 per cent increase from the 2021 election. [read]

• “I messed up — can I get a revote?” The CBC answers your biggest voting questions. [read]

Science is Hope 🧪

• For the millions of American women and girls who will get a UTI at some point in the next few years, they may be able to treat it with the first new medication approved for the purpose in 3 decades. [read]

• A New Colour Discovered?! An experiment in human photoreceptors allowed scientists to recently define a new colour, imperceptible by the human eye, that lies along the blue-green spectrum but is different from the two. [read]

• Three teens have invented a small, salt-cooled fridge that needs neither a power outlet nor a battery, but rather cools down passively as salts dissolve in water. [read]

• With millions of migratory birds expected to pass through the city this season, the City of Toronto is asking residents and businesses to turn off unnecessary lights at night to prevent fatal window collisions. [read]

The Dystopian Hellscape

• Beware your remote control. Saying a single word into it (whether you mean to or not) might add money to your bill. [read]

• FUCK NO: Thousands of humanoid robots ran alongside humans in a half-marathon in the Chinese capital on Saturday. [read]

Rest in Peace 🙏🏻

• Noreen Young, a renowned Canadian puppeteer perhaps best known for creating the popular CBC children's show Under the Umbrella Tree, died this week. [read]

• As Catholics mourn the death of Pope Francis, the religious leader is being remembered for his historic apology for the Catholic Church's role in residential schools. [read]

Photospotting 📸

FOLLOW TOD ON SOCIAL MEDIA
Let’s Be Friends!

I only post some of my content on the channels below, and I do not read comments or DMs: Facebook • Instagram • Threads • LinkedIn • Mastodon • TikTok • X/Twitter

REFER PEOPLE, WIN PREMIUM!
Share to Win

Want to get our bonus issues mid-week issues for free?

You currently have 0 referrals, only 5 away from receiving 1 month free of premium access.

See your referral status here.

In partnership with

In partnership with