By Peter L. Biro
What is The Notwithstanding Clause
In 1982, Canada amended its Constitution, patriating it from the UK Parliament and entrenching basic civil liberties in a Canadian Charter of Rights and Freedoms (the Charter). Section 33 of the Charter – the “notwithstanding clause” (NWC) – allows Parliament or a provincial legislature to pass an act that expressly declares that such legislation or any of its provisions “shall operate notwithstanding a provision included in section 2 or sections 7 to 15 [the fundamental freedoms, legal and equality rights provisions] of this Charter.” Its invocation and promulgation must comply with certain formalities, most notable of which are those pertaining to the term of its effectiveness and to its possible renewal.
Whether this provision constitutes an outright override of Charter rights and freedoms barring all judicial review or a limited and contextually specific suspension, subject to judicial review, of those rights and freedoms, or whether it does not actually suspend or override rights and freedoms whatsoever, but instead resituates – from the courts to the legislatures – the forum in which such rights and freedoms are to be defined and protected, are matters of considerable debate and controversy among scholars, political actors, civil libertarians and civil society organizations. There is a live and serious question of whether the NWC is a good thing or a bad thing to have in the constitution of a mature, liberal democratic society or, more properly, whether it has both genuinely salutary and deleterious implications for Canadian civic culture.
An Instrument of Democracy?
One of the NWC’s architects, former Saskatchewan Premier Allan Blakeney, explained that it was intended as an instrument “to mediate the clash of Charter and non-Charter rights”, all of which, he contended, were equally important to both the moral and legal interests at play in Canadian society and politics. Another strong defender of the NWC, Former Alberta Premier Peter Lougheed, argued that the NWC preserved and gave continuing effect to Canada’s tradition of Parliamentary supremacy – i.e., that the elected Parliament must, in matters of rights interpretation, be supreme over the appointed judiciary.
I have consistently argued that, while the invocation of the NWC does not offend the rule of law, it nevertheless poisons the liberal democratic well from which free citizens draw their water. It undermines the elegant and meticulously crafted accountability regime set out in Section 1 of the Charter which regulates the limitation, by Parliament and the Provinces, of the very rights and freedoms that, but for Section 33, are protected, indeed, guaranteed. In Section 33, however, we dispense entirely with the exercise of justifying the abridgment of constitutionally protected rights and freedoms when such an exercise risks producing an inconvenient or embarrassing result.
A Dagger in the Heart of Civil Liberties
A central concern of civil libertarians whether Canada’s commonwealth model of constitutional democracy can admit of an override clause that even provisionally suspends the ordinary authority of fundamental rights provisions on the operation of laws expressly unanswerable to such authority, even provisionally. The problem becomes even more acute when one considers the evolving practice – in both Quebec and Ontario – of invoking the NWC pre-emptively rather than responsively, that is, prior to the commencement of a court challenge to an impugned law and a corresponding judicial review of the law’s consistency and compliance with the Charter rights and freedoms which the NWC is said to override.
Some of the laws insulated pre-emptively by provincial legislatures include Quebec laws to prohibit the wearing of religious symbols, to make French the only official language in the province, and Ontario laws to restrict third party election advertising and advocacy during an election period and, most recently, to restrict the right to strike in the context of back-to-work legislation (and was then rescinded because the government and union negotiated a resolution). Ultimately, there is a live question for scholars and civic actors as to whether the NWC undermines or advances the cause democracy. Indeed, it puts the legitimacy of judicial review under the microscope and forces legislatures to account for themselves as interpreters and guardians of rights.
Limiting the Notwithstanding Clause
So while consensus across philosophical, ideological and partisan lines on the merits and demerits of the NWC is unlikely, there is an increasing acceptance of the idea that the preemptive use of the NWC should not preclude judicial review altogether. It is recognized in most quarters that society benefits from judicial commentary on the effect of a law on the exercise of fundamental rights and freedoms, even if that such an exercise has no prospect of striking down the impugned law as being unconstitutional. Judicial review enriches the marketplace of ideas and informs future legislative debate and deliberation. Accordingly, even if repeal of the NWC remains extremely improbable in the foreseeable future, it is not unlikely that there will be modifications to the formalities governing its use, whether in the form of constitutional amendments or in ordinary legislative initiatives. Stay tuned.
About the Author
Peter L. Biro is a lawyer and the Founder of Section 1 (www.section1.ca), a democracy and civic engagement think-tank. He is a Centre Associate of the University of British Columbia Centre for Constitutional Law and Legal Studies, a Fellow of the Royal Society of Arts (FRSA), Chair Emeritus and Past-Chair of the Jane Goodall Institute. He is the Editor of CONSTITUTIONAL DEMOCRACY UNDER STRESS – A Time For Heroic Citizenship (Mosaic Press), and of a forthcoming volume on THE NOTWITHSTANDING CLAUSE – Canadian Constitutional Democracy at a Crossroads (forthcoming).
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