Poll: Most readers would make the non-compliance clause more difficult to use

Just over half of readers surveyed in an online poll this week said the waiver clause should be made more difficult to use than it is now, but not removed from the Constitution entirely.

The rest were divided between those who would get rid of it and those who would leave it unchanged.

The notwithstanding clause or section 33 of the Charter allows Parliament or a provincial law to make laws that override some but not all rights. (Sections affected are 2 and 7 to 15: you can read those sections here.)

On paper, these are some crucial freedoms, such as freedom of religion and speech, and some rights related to the criminal justice system, such as the right not to be arbitrarily imprisoned or subjected to cruel or unusual punishment .

Given the dark history of what governments – including Canadian governments – have done to people, a tool like this has struck many as alarming since it became law.

“The Exception Clause is a dagger to the heart of our fundamental liberties and should be abolished,” constitutional scholar Eugene Forsey wrote in 1989.

From time to time, frustrated politicians, almost always in Quebec, rarely elsewhere, have found it irresistible — though none have gone so far as a law passed in Quebec in 1982 that applied the derogation clause retroactively to any law passed by the province in the past and also for every new law passed until 1985. The Supreme Court upheld this as constitutional in 1988.

For better or worse, in practice, the main thing holding politicians back seems to be public disapproval. Ontario Premier Doug Ford tried to use the clause during a labor dispute in 2022, but backed off. However, in 2021, the province used it to amend the Electoral Finance Act.

In April, federal Conservative leader Pierre Poilievre appeared to suggest that a future government led by him would use the clause to pass laws to tighten the bail system. (It was never used at the federal level.)

“We’re going to make them constitutional, using whatever tools the Constitution allows me to use to make them constitutional,” he told a police conference. “I think you know exactly what I mean.”

The largest group of readers this week favored a reform under which the override clause could only really be used with cross-party support in a legislature, beyond a government caucus whose members can be ordered more or less to vote for her.

Men and women did not have sharply divided opinions:

Broken down by age, the younger the reader, the more inclined they were to leave the clause as is:

There is a strong partisan divide, with conservatives much more inclined to keep things as they are:

Which continues, more or less, in the approval charts for Trudeau and Poilievre. Those with strong disapproval of Poilievre are more inclined to want to abolish him entirely, while we don’t see a strong mirror effect on Trudeau’s chart. People with strong approval of Poilievre and strong disapproval of Trudeau tend to favor keeping him.

University graduates are more inclined to abolish it:

How does the issue intersect with libertarian views? Generally, people who favored less restrictions on both firearms and drugs (legalizing cannabis was a good thing, legalizing psilocybin and MDMA would be a good thing) would also get rid of the waiver clause, though the margins didn’t are large in some cases. However, there is an interesting exception to this pattern.

By a fairly strong margin, people who condemn the federal government’s use of the Emergency Situations Act in 2022 support keeping the waiver clause. This might seem paradoxical; The best I can find is that support for the opt-out clause has ended up being part of a Tory-linked pool of opinion, along with support for convoys/occupations/blockades. It would be interesting to see if this is also true for PPC voters, but our sample size is not large enough to determine this.

Interestingly, two questions we use to look for a broad traditional view, views on monarchy and separate schooling, show no real contrast at all.

And while the spread isn’t wide, cats are the group most likely to get rid of the waiver clause, and dogs the most likely to keep it.