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I was thinking about the notwithstanding clause of the Canadian Charter of Rights and Freedoms and it seems that it has the disturbing implication that allows arbitrarily bad abuses of government power, up to and including the scale of the Holocaust.

If Parliament passed some legislation stating that all Jews shall be imprisoned and executed, notwithstanding sections 2, 7, 9, 10, 12, and 15 of the Charter, would it be legal for the government to round up all the Jews, send them to concentration camps, and gas them as in the Holocaust?

Short of revolution, is there any mechanism to prevent this? As far as I know (but I'm not certain at all) the Charter is the only portion of the Canadian constitution that deals with human rights, and if the notwithstanding clause is invoked, such legislation would be constitutional and could not be struck down by the courts. Furthermore, as far as I know, Canadians cannot recall their MPs, so it would not be possible to remove the MPs who support such legislation until the next election, which could be up to 4 years away.

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  • In theory the same thing could happen in the UK as they have an implicit/unwritten version of the clause (according to Wikipedia). This is one of those "yes, but..." questions. Might as well ask what if the Canadians changed their constitution to explicitly allow the Holocaust. There's always the risk of a foreign power, nowadays even with a UNSC mandate, to swoop in and eventually set up a Nuremberg style tribunal, invoking obvious violations of customary international law.
    – Looking for loopholes
    Commented Sep 9, 2021 at 23:56

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I can think of three ways that your hypothetical bill could fail to become enforceable law.

  1. The Canadian Constitution contains unwritten constitutional principles. Among other things, in Reference Re Secession of Quebec [1998] 2 S.C.R. 217, the Supreme Court recognized that protection of minorities is an independent and fundamental part of the Constitution:

    Canadians have long recognized the existence and importance of unwritten constitutional principles in our system of government.

    [...] the preamble invites the courts to turn those principles into the premises of a constitutional argument that culminates in the filling of gaps in the express terms of the constitutional text.

    [...] the protection of minority rights is itself an independent principle underlying our constitutional order [...]

    The Supreme Court of Canada could rule such a law unconstitutional in order to protect minority rights.

  2. The Queen of Canada via her Governor General could decline to give such a bill royal assent, preventing it from becoming law.

  3. The Queen/Governor General can dissolve Parliament at any time to trigger an election.

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    While I initially agreed with point 1 of this answer, the recent 5-4 decision in Toronto (City) v. Ontario (AG) casts serious doubts at paras. 60-63. Unwritten constitutional principles cannot on their own invalidate legislation, they are instead an interpretive aid to the written constitution.
    – DPenner1
    Commented Oct 2, 2021 at 4:58

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