Canada Needs to Lose Its Bizarre, Terrible, Regrettable Notwithstanding Clause
The rarely-used constitutional clause allows governments to opt out of court decisions. Many have long argued it was a disaster waiting to happen.
Quebec premiere François Legault and Ontario Premiere Doug Ford | Images via CP.
Less than 24 hours after being elected as Quebec’s new premier, CAQ leader Francois Legault said he would use the notwithstanding clause to override any court decisions that might interfere with his efforts to ban religious symbols.
This vow came less than a month after Ontario Premier Doug Ford also indicated he would also use the notwithstanding clause, basically whenever he needed to. Both premiers know full well that the clause is rarely used and was supposed to only be invoked in extreme circumstances. For those unaware of arcane Canadian Constitutional clauses, the notwithstanding clause allows the federal or a provincial government to override a court decision, in the event that they can get a majority of parliament to vote to invoke the clause. When Ford floated the idea, framers of the 1982 Canadian constitution suggested Ford's use of the notwithstanding clause was a bad move. And Conservatives also expressed unease, including former prime minister Brian Mulroney, which might make for an awkward Thanksgiving—his daughter, Caroline Mulroney, was appointed the Ontario's attorney general by Ford and supports use of the contentious clause.
Ford wanted to invoke the clause—a move many consider a nuclear option—to ram through a bill to cut Toronto’s city hall in half, claiming (without much evidence) that it would save money and make Toronto run more smoothly and efficiently. Of course, Ford only targeted Toronto and not any of the other municipalities in Ontario, so his bill likely had nothing to do with his own troubled tenure at City Hall and with new seats being distributed to the ‘downtown elites’ that rejected him in 2014.
In Legault’s case, he is defending the ban on religious symbols worn by civil servants as a means of protecting Quebec secularism, something considered sacred since Quebec’s landmark Quiet Revolution of the early 60s, in which the Quebecois threw off the chains of oppression kept in place by the government and the Catholic Church. Legault has not held a formal press conference yet, so journalists have not been able to press him further on his possibly invoking the clause.
When asked, Ford has stated bluntly that he’ll consider using the notwithstanding clause whenever he needs to. And why shouldn’t he, he has asked rhetorically. After all, it’s there—so why not use it? And with that question, Ford has a point. The fact is, the notwithstanding clause was an epic blunder, a bit of legislation that paved the way for just this kind of disaster—tyrants elected by majorities trampling over court decisions without any actual logic or reasoning, in some cases bypassing Canada's Human Rights Charter, simply because they can and the courts have gotten in the way of their war.
The Canadian government agreed to the notwithstanding clause when fatigue had set in during lengthy and messy attempts in the early 80s to bring the constitution back to Canada from Britain, its past colonizer. When several provincial premiers argued they wanted the power to occasionally opt out of court decisions, negotiators, led by then-prime minister Pierre Elliott Trudeau, caved, creating the clause.
But the clause has had its critics all along. Svend Robinson, an NDP Member of Parliament when the constitutional negotiations were unfolding, immediately pointed to its possible misuse, in particular noting that it would allow for parliamentary majorities to override the Charter of Human Rights and Freedoms. Robinson voted against the new Canadian constitution in 1982, specifically citing his protesting of the notwithstanding clause. (Robinson, notably, was the first openly-gay member of Canada's parliament, and thus had hunch the clause could possibly override decisions protecting minorities.)
In 2000, when Stockwell Day became leader of the Canadian Alliance (then the official opposition), I asked him if he would consider invoking the notwithstanding clause in the event of a Supreme Court decision allowing for the legal recognition of same-sex marriages. The politician had been renowned for his discomfort with the advances of the rights of gays and lesbians, and he acknowledged he would consider using the notwithstanding clause in such an instance.
During a leaders' debate in the 2006 federal election, then prime minister Paul Martin brought up the notwithstanding clause, promising to remove it from the constitution if re-elected, and demanding that his Conservative opponent, Stephen Harper, make the same pledge. Martin warned the clause could be used recklessly and to possibly curtail the rights of minorities or women, and was dismissed as “desperate” for having done so. (The issue was dropped when Martin and the Liberals lost the election.)
But we now have the very moment naysayers warned about: thoughtless, vindictive leaders with majorities in their parliaments, who speak of the defense of democracy as their motivation, while simultaneously ignoring the fact that the judicial branch is a crucial part of the checks and balances in a democracy, not some opposing, external force. Inadvertently, Ford and Legault have prompted a crucial question: what is the point of having a Charter of Human Rights and Freedoms if it can be so easily cancelled at the whim of a ruling government?
The issue is now one Canada's federal Liberal government and its leader, Prime Minister Justin Trudeau, must address: it's time to amend the Canadian constitution and revoke the notwithstanding clause, for the sake of Canada's democracy. While changing the constitution will take time and is obviously an extremely complicated process, leaving the notwithstanding clause in place is not an acceptable option. The dangers it presents are now only too obvious.
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