Rustad and the Notwithstanding Clause

(Dirk Meissner/The Canadian Press)

I’d never paid much attention to Section 33 of the Charter of Rights and Freedoms more commonly referred to as the “notwithstanding clause”. For starters, it’s never been used in B.C. and it comes with an image of stuffy Laurentian elite furrowing their brows in Ottawa backrooms. Constitutional Law has always felt like an exercise in semantics and an overly complicated process that rarely favours the plaintiff. Of course, balancing individual rights with that of broader society should be met with extreme diligence. So why is there a provision that completely nukes this process? The presence of the Notwithstanding Clause presents us with a paradox: without it we’d have no constitution and subsequently no Charter of rights but using it undermines said Charter. 

Some will say its use is limited by fear of public backlash- as in the case of Doug Ford’s most recent folly. This is a certainly volatile form of political accountability and one that is not guaranteed. In Saskatchewan, Scott Moe invoked the notwithstanding clause in a bill that protects parents rights. This is unconstitutional because it undermines the rights of children to use preferred pronouns at school without their parents being made aware. Besides, parents don’t have rights, they have duties. Children aren’t property. 

Which brings me to B.C. John Rustad, the upstart Conservative leader surging in the polls on a platform of transphobia, racism, ableism, and climate change denial has promised to use the notwithstanding clause to “end open-air drug dens” whatever the fuck that means. 

Nevermind that there almost 2 safe alcohol consumption sites on every block of Vancouver and only 39 safe consumption sites for drugs in all of Canada, alcohol isn’t fucking poisoned. While decriminalization was a failure from the start by imposing a 2.5 gram threshold, the practice of police confiscating drugs has increased, leading to users seeking out potentially poisoned supply. 

This should absolutely be national news. The collusion between the far-right and anti-harm reduction rhetoric is well documented. The treatment industry is a multi-billion dollar industry that is barely regulated and rife with sexual abuse. His remarks about rounding up the mentally ill and forcing them into treatment should worry all Canadians.