The case for making the notwithstanding clause politically awkward again
More and more politicians seem to be treating it as a convenient Charter of Rights escape hatch
In an essay published several months after he played a central role in the negotiations that led to the Charter of Rights and Freedoms and the Constitution Act of 1982, Roy McMurtry wrote that he was "saddened" by "irrational allegations that the 'notwithstanding clause' was prompted by provincial politicians determined to retain the option of trampling on individual freedom with Draconian legislation."
The clause, he wrote, had real merit as a "balancing mechanism" between the legislative and judicial branches in the "unlikely event" that the courts render a decision "clearly contrary to the public interest."
"On the other hand, political accountability is the best safeguard against any improper use of the 'override clause' by any Parliament in the future," wrote McMurtry, who was attorney general of Ontario from 1975 to 1985.
There are at least two ways to think about the relationship between political accountability and the notwithstanding clause.
One is external. Voters — encouraged by civil society and politicians — can voice their displeasure and punish a leader who goes too far in invoking the clause to override a charter right.
The other is internal. Leaders themselves can understand the need for self-restraint and forbearance. No democratic system can endure if political actors are constantly pushing their powers to their absolute limits with no regard for long-term consequences.
But neither the threat of voter outrage nor the responsibilities of power are doing much right now to discourage politicians from embracing the notwithstanding clause.
The notwithstanding clause comes roaring back
Until recently, there were only a handful of examples outside Quebec of the clause being used. It was only invoked once anywhere between 2001 and 2016. Obviously, however, it was a mistake to assume it had become the exceptional measure its creators imagined it would be.
In the last three years, Francois Legault's government in Quebec has preemptively invoked the notwithstanding clause for Bill 21, which bans the wearing of religious symbols by workers in the public sector, and Bill 96, the government's new language law.
In 2018, Doug Ford's Ontario government threatened to use the clause to defend its unilateral resizing of the Toronto city council (a threat that was condemned by McMurtry and two other architects of the Constitution). Ford's government formally invoked the clause three years later to protect new limits on political spending by third parties after a judge ruled that the law was an unjustified infringement of freedom of expression.
Last week, after the Supreme Court ruled that imposing consecutive periods of parole ineligibility on a life sentence amounted to "cruel and unusual" punishment, two candidates for the Conservative party leadership — Patrick Brown and Pierre Poilievre — quickly vowed to invoke the notwithstanding clause to reinstate the sentencing provision that was struck down.
This is now something of a tradition in Conservative leadership races. In 2020, then-leadership candidate Erin O'Toole said he'd use the notwithstanding clause to uphold several mandatory minimum sentences. In 2017, the candidates took turns promising to use the clause for an array of issues.
Canadians still like the charter
This new willingness to override charter rights doesn't seem to reflect any great sea-change in public opinion.
When the Environics Institute asked Canadians about the Charter of Rights earlier this year, 79 per cent said it was a "good thing" while just five per cent said it was a bad thing. Fifty-five per cent said the Supreme Court should have the final say on which laws are constitutional — just 19 per cent said that role should belong to Parliament. Forty-seven per cent said Parliament "should not" be able to override the charter, against 28 per cent who said it should.
But these political leaders don't seem to fear the political consequences and democratic ramifications of embracing the notwithstanding clause. The forces of political accountability aren't serving as a deterrent — both the Ford and Legault governments seem likely to be re-elected this year.
Leaving individual and minority rights vulnerable to the whims of the majority is antithetical to the very idea of human rights. But if invoking the notwithstanding clause seems easy, more leaders will give in to temptation when they think there's some political advantage to be exploited.
"If you like the use of the notwithstanding clause in one case because, for whatever reason, you disagree with the court's judgment, the next government will use it to override a right that you do agree with," Liberal MP Anthony Housefather said in an interview with Rosemary Barton Live this past weekend. "And I don't think this is the way the game should be played."
Protecting rights means winning hearts and minds
There are no easy solutions here.
Repealing the clause would require provincial consent for a constitutional amendment. But even if the notwithstanding clause could be done away with easily, it might be a bad idea to do so. However wise and reasonable the nation's judges are, it's impossible to rule out the possibility that courts might render a decision that deserves to be set aside.
McMurtry, for instance, holds out the example of the U.S. Supreme Court invalidating laws against child labour (though, as others apparently have, he seems to misstate the exact sequence of events). In such cases, there would be something to be said for giving elected representatives the power to overrule the courts.
But McMurtry also wrote that the notwithstanding clause debate reminded him of something former federal U.S. justice Learned Hand once said about liberty — that it "lies in the hearts of men and women. When it is alive it needs no constitution, no law, no courts to save it, but when it dies, no constitution, no law, no courts can save it."
That is the challenge facing the charter's defenders. If political accountability is to once again restrain the notwithstanding clause, they need to wage a campaign for hearts and minds that pushes individual rights to the forefront of public discussion.
WATCH: The Legault government passes controversial language bill
Justin Trudeau's government might be wise to avoid engaging directly with Bill 21 or Bill 96 unless or until any legal challenges reach the Supreme Court — thus making it harder for some Quebec politicians to frame such bills as a fight between their province and the rest of Canada.
But the notwithstanding clause is not a Quebec issue. It's a Canadian issue — and its use goes directly to the larger and urgent challenge of strengthening and preserving liberal democratic institutions.
Justice Minister David Lametti said last week that he was concerned about the advance use of the clause (as in the cases of Bill 21 and Bill 96) and some Liberal backbenchers (such as Housefather) are voicing concerns.
But such interventions don't amount to much more than light pushback. To succeed, the charter's defenders need to make the notwithstanding clause politically difficult again.
The lines that aren't supposed to be crossed will have to be redrawn. And if Liberal MPs are sufficiently concerned, perhaps they could convince their colleagues on the justice committee to launch hearings on the use of the notwithstanding clause.
To borrow a phrase, political accountability doesn't happen by accident. It requires effort.
- This story has been updated from an earlier version which incorrectly identified former federal U.S. justice Learned Hand.Jun 01, 2022 10:46 AM ET
- This story has been updated from an earlier version which contained incorrect information on how often the notwithstanding clause has been used in the past.Jun 01, 2022 3:26 PM ET