The Notwithstanding Clause: Rights are on the line. So is democracy!

It is one thing for a law to operate notwithstanding its inconsistency with a Charter right or freedom. It is quite another for such operation to occur in darkness.  

“A dagger pointed at the heart of our fundamental freedoms.” That’s what the late Senator Eugene Forsey called section 33 of the Canadian Charter of Rights and Freedoms, the notorious “notwithstanding clause”, which permits the operation of federal and provincial laws “notwithstanding” that these laws infringe specified Charter rights and freedoms. Quebec Premier François Legault calls it the “Parliamentary sovereignty clause” on the theory that it gives Parliament and the provincial legislatures, rather than the courts, “the last word” on the interpretation and protection of rights and on the preferred means of balancing rights against other government priorities and societal interests.  

“If  this dagger is flung”, said Forsey, “the courts will be as powerless to protect our rights as they were before there was a Charter of Rights”[1].  Well, the “dagger” has, indeed, been “flung”.  And in due course, we will learn just how prophetic was Forsey’s warning about the courts’ corresponding impotence to safeguard Charter rights and freedoms. 

Two hugely significant recent cases –  Bill 21, laicity of the State,  from the Quebec Court of Appeal, and the Parental Bill of Rights, “Pronouns” case from the Saskatchewan Court of King’s Bench  – will almost certainly both land on the Supreme Court of Canada’s docket in due course. Each case has come down on opposite sides of a question that, while seemingly esoteric at first blush, will decide whether Canadians have a right to ask the court  whether and to what extent a law shielded by the notwithstanding clause  actually infringes fundamental rights and freedoms.  

The regime established for the use of the notwithstanding clause was expressly designed to enable Canadians to periodically consider and deliberate the merits and implications of Charter-infringing laws so that the governments enacting those laws could be held accountable both by the legislatures and also by the electorate.  This was precisely the thinking of the clause’s earliest and most ardent proponents, former Premiers Peter Lougheed of Alberta and Allan Blakeney of Saskatchewan, who, along with revered constitutional scholar, Peter Russell, were more sanguine than Forsey about its merits.  They believed, as Russell put it, that “a democracy which puts its faith as much in its politically active citizenry as in its judges to be the guardians of liberty is stronger than one that would endeavour to vest ultimate responsibility for liberty and fundamental rights exclusively in its judiciary.”[2]  But if courts are not permitted to opine on rights violations and to elucidate the nature of any inconsistency between a protected law and a Charter right or freedom, how are citizens to competently consent to the subordination of those rights and freedoms to some other government priority or public interest?

The historical record discloses that, without inclusion in the Charter of the notwithstanding clause, there would have been no deal to patriate Canada’s constitution, no made-in-Canada amending formula, and no Charter.[3] It was, in the words of Thomas Axworthy, Principal Secretary to the then Prime Minister Pierre Trudeau, an “historic Canadian compromise”[4], culminating in the Queen’s visit to Ottawa on April 17, 1982 to sign Trudeau’s “People’s Package” into law. 

But only now, more than forty years after the Charter’s enactment, is this most controversial and misunderstood provision in Canada’s Constitution also beginning to reveal just how consequential this “historic Canadian compromise” is for the practice of democracy and for the future of liberal constitutionalism in Canada.

While the notwithstanding clause has been said to “override” or “suspend” Charterrights and freedoms, that language feeds into what some scholars have described as a “faulty received wisdom”[5].  There is, of course, no doubt that the provison’s legislative invocation allows a law to operate although it infringes Charter rights and freedoms. We are left, however, to consider whether this ought to preclude a citizen’s recourse to the courts seeking judicial recognition of the harm suffered by virtue of a rights violation.  It is one thing, after all, for a law to operate notwithstanding its inconsistency with a Charter provision.  It is another thing altogether for such operation to occur in darkness.  If invocation of the notwithstanding clause ousts the court’s  jurisdiction to inquire into a law’s effect on the exercise of otherwise constitutionally protected rights and freedoms, then society will be ill-equipped to take the full measure of a government’s policies and of the cost to Canadians of those policies measured in diminished civil liberties.

At the time of the Charter’s genesis, then Justice Minister Jean Chretien assured Parliament that invocation of the notwithstanding clause would be confined to use as a “safety valve” and “last resort” to “correct absurd situations”[6].  Apparently, a number of provincial governments haven’t quite seen it that way.  To date, they have resorted to the notwithstanding clause some twenty-six times in legislation, although it was promulgated and made effective in only eighteen of those twenty-six instances.  Premier René Lévesque’s government invoked the notwithstanding clause in 1982, applying it to the Province’s entire statute book. Parliament has yet to invoke the clause.

Provinces have invoked the notwithstanding clause to protect back-to-work legislation, to defend the funding of Catholic schools for non-Catholic students, to limit third-party spending on political advertising, to permit public schools to continue offering religious education, to end non-medical exemptions to vaccinations in school children.  In a few instances, governments removed the invocation from bills before they were voted on and in others, laws enacted with the notwithstanding clause were repealed. 

Having refused consent to Pierre Trudeau’s “People’s Package” patriating the Constitution in 1982, Quebec was the earliest and most frequent user of the notwithstanding clause.  In addition Bill 21, Quebec has invoked it to restrict the posting of certain commercial signs in languages other than French, to affirm that the only official language of Quebec is French (Bill 96, the Charter of the French Language), and in several other instances.  

Bills 21 and 96 were especially controversial, not least because they involved the pre-emptive use of the notwithstanding clause, that is, the invocation of the clause prior to any court challenge or judicial finding of infringement by a protected law of a Charter-guaranteed right or freedom.  Previously, it had been assumed by many that the notwithstanding clause would only be used “responsively”, after a court had already determined that a protected law had infringed a Charter right or freedom and that the infringement could not be justified under section 1, the “reasonable limits” clause of the Charter, which permits rights restrictions only in circumstances consistent with the principles and values that attend a “free and democratic society”. No longer!

Pre-emptive use of the notwithstanding clause cannot but degrade democracy if the judiciary is thereby rendered impotent to shine a light on legislated rights violations.  The meaningful exercise of one’s democratic franchise depends, in large measure, on possessing an understanding of what is at stake for the individual and for society.  Our democracy will be impoverished without the benefit of the scrutiny and comment of the courts concerning matters on which they are uniquely qualified to opine.

Let us hope, for the sake of a robust and enlightened democratic culture and for the benefit of minorities who look to the Charter as an instrument of counter-majoritarianism and symbol of political pluralism, that the Supreme Court will ultimately approve of Saskatchewan Court of King’s Bench Justice Megaw’s reasons in the “Pronouns” case in which he observed that “the issuance of a declaratory judgment has purpose and meaning beyond necessarily interfering in the operation of legislation validly passed and enacted by the legislative branch of government. It is an “effective and flexible” remedy to provide legal comment on the actions taken by government.  It permits the citizenry to continue to participate in the democracy and to challenge that which a government has done.”[7]

The “dagger” will be “flung” again, not because wisdom and the public interest commend it, but simply because it is there.  The only question that remains to be definitively answered is whether the notwithstanding clause not only insulates rights-violating laws from being struck down, but also whether Canadians will be afforded the dignity and corresponding empowerment that result from the judicial acknowledgment of the causal connection between a government measure and the compromise of their civil liberties.

Peter L. Biro is the founder and president of the democracy think tank Section 1. He is a senior fellow of Massey College, aCentre Associate of the University of British Columbia Centre for Constitutional Law and Legal Studies, and the editor of The Notwithstanding Clause and the Canadian Charter: Rights, Reforms, and Controversies.