The notwithstanding clause, s. 33 of the Canadian Charter of Rights and Freedoms, is a constitutional provision that plays a significant role in some of Canada’s most recent controversial legal issues. In December, the Ontario Bar Association gathered legal, policy, and political experts to discuss its use. The event featured a full day of engaging conversations and critical analysis. The day began with a historical overview of the Charter and the origins of the notwithstanding clause, delivered by Dr. Thomas Axworthy. The later panel discussions explored key trends in its use to date, as well as perspectives on the pros and cons of invoking the notwithstanding clause in the future.
Panel 1: The Origin Story
Dr. Thomas Axworthy provided historical context from the room where it happened. He began his talk by reminding us that “history is a very different place." Canadian politicians of the 1980s were primed with concerns from preceding decades. For instance, American President Roosevelt’s plan to increase the number of Supreme Court Justices raised concerns about politicizing judicial power. The political decision of internment of Japanese Canadians following WWII was a grave infringement of basic human rights that weighed heavily on the minds of decision makers and lawyers. In this light, the Charter and the notwithstanding clause could be tools to mediate these concerns and strike a balance of power between the provincial legislatures and the judiciary. The negotiations at the time did not linger on the substance of the Charter but focused mainly on the reviewing role of the court.
What?
Section 33 of the Charter known as the notwithstanding clause allows the Parliament or any provincial legislature to temporarily defer limited sections of the Charter. This measure prevents the courts from striking down legislation because it violates section 2, 7, or 15 of the Charter. The clause is only effective for five years and must be renewed for its continued effect.
In substance, the notwithstanding clause of the Canadian constitution is unique from other constitutional democracies. It is a manifestation of the power struggle between distinct provincial goals and identities and the project of a centralized and unified federal government.
Where and when?
While the drafting of the constitution took place over a series of negotiations held in Ottawa, the amending formula and the renewable notwithstanding clause were formed at the National Conference Centre in Ottawa on November 4, 1981, in what is known as the “Kitchen Accord”. The accord was drafted in the kitchen of the conference centre by Jean Chrétien (Federal Minister of Justice), Roy Romanow (Attorney General of Saskatchewan), and Roy McMurtry (Attorney General of Ontario).
Who?
The “gang of eight”, meaning all provincial premiers except Ontario and New Brunswick, had opposed Prime Minister Pierre Elliott Trudeau’s professional life goal to patriate the constitution and enact a Charter of Rights and Freedoms to enshrine common law principles. Quebec’s opposition, advocated by Premier René Lévesque, stemmed from a deeply entrenched goal to separate from the union. The Charter negotiations came on the heels of a recently failed referendum in Quebec to separate in 1980.
The other provinces opposed the Charter as they imagined it would result in a concentration of power in central or southern Ontario. However, they were more interested in negotiating with the federal government than holding another fraught and divisive referendum.
Why?
The notwithstanding clause was born from a break in provincial alliances. Premier Lévesque broke from the gang of eight’s interests when he singularly agreed in discussion with the Prime Minister to hold a national referendum. This break in their united stance gave each premier the freedom to negotiate with the federal government in pursuit of their unique provincial concerns rather than continue to back Quebec’s uncompromising posture against federalism.
The idea of the notwithstanding clause was raised by Roy Romanow and Roy McMurtry. Jean Chrétien at the federal level helped broker the compromise to other provinces to see how many he could get on side. Its purpose was to provide comfort to the provinces. Where a court found that provincial legislative goals were at odds with the Charter, there would be a mechanism to pursue such goals nonetheless, and a requirement to review the decision at the five-year mark.
When Dr. Axworthy was asked if he could go back and advise on a change to the drafting, he stated he would have added language to make a judiciary ruling a prerequisite to the use of section 33 because he noticed that the current use of the section takes courts out of the dialogue completely. Provincial legislatures using the notwithstanding clause do not wait for the court to make a finding of a Charter infringement. Instead, they preempt a Charter challenge and draw the shield in advance.
Panel 2: Current Trends in the Use of the Notwithstanding Clause
In the introduction and historical background, we learned that no one at the time of drafting anticipated that the provinces would preempt an infringement and exert political will before the court had ruled on constitutionality.
In the past, legal scholars described the notwithstanding clause as a “paper tiger” with minimal use outside of Quebec, which used it wholesale and routinely to every new law passed from 1982 to 1985. Panelist Marion Sandilands called the period from 2018 to now a “new age” of the notwithstanding clause. She counted seven actual uses and two instances where a bill was introduced but not adopted in Saskatchewan, Ontario, Quebec, and New Brunswick. To date, the federal legislature has not used the notwithstanding clause. However, the conservative opposition party has mused about using it for criminal justice reform.
A lawyer for the Ontario government on the panel shared that s. 33 is a tool that may be contemplated when awaiting a judicial ruling is not a favorable policy option, such as in the time sensitive City of Toronto appeal case. He argued that examples of its use or near use in Ontario and the public’s ability to push back and rally against its use are signs of a healthy and engaged democracy.
Panelist LJ Stanic noticed that the central tension remains one between politicians and “non-elected judges." Stanic’s survey of the recent use cases revealed that there is a pattern of using the section as a hammer against disadvantaged and unpopular groups who are not as well-resourced to fight Charter infringements. At the same time, such infringements can help politicians be seen as “taking action” and win popular votes.
Healthy democracy demands public trust of both institutions, the legislature, and the judiciary. When combative rhetoric is used by politicians and judges, this can erode the public’s necessary sense of mutual respect for each lane of authority and their relationship to each other. Part of this shift may be influenced by the number of politicians who are not trained as lawyers and the changing landscape of politicized media coverage and algorithm-based promotion.
On reflection of the topics and issues discussed at the panel, those with legal training should be thinking carefully about our role in:
- Civic education,
- Political engagement,
- Quality media and advocacy, and
- Our distinctly Canadian political-legal system
Panel 3: Unravelling the Pros and Cons for the Use of the Notwithstanding Clause
In this panel, there was a lively debate on the pros and cons of using the clause from political and academic perspectives. The former Attorney General of Ontario, Michael Bryant, started the conversation on how the government over a decade ago viewed the notwithstanding clause as an instrument that would instantly cause political backlash outside Quebec. That political drawback is less pronounced today, and the tool is more readily contemplated. Noa Mendelsohn Aviv discussed criticisms of the notwithstanding clause as a political tactic for tyrannical governments to diminish the credibility of the judiciary.
Professor Adam Dodek pointed out that the Canadian public perception of judicial appointments has gaps and Canadians tend to conflate the American system with ours. Professor Allan Hutchinson stated that if people were more knowledgeable about the Supreme Court of Canada, they might have a more skeptical view of the courts. Before the Charter, some human rights legislation was created despite judicial interference. After the Charter, the court has not always been at the forefront of progressing socio-economic issues.
Hutchinson also pointed out that lawyers may be inclined to romanticize the courts’ role. He warned that lawyers should think twice about relying too heavily on the courts to protect rights and be progressive. Law students and lawyers should be cautious of the school of thought that automatically supports the courts being the best avenue for resolution. The courts have a history of never being too far ahead or behind conventional politics.
The conversation continued who should get the final say on disputed or controversial matters that protect human rights. Professor Hutchinson highlighted the court’s history showing that judicial decisions can protect or hinder human rights. The rule of law allows the judges the authority to interpret the law. Stéphane Sérafin pointed out judges do not have privileged interpretive positions that can undermine authority given to the legislature. The rule of law must respect the separation of powers on the protection of human rights. The notwithstanding clause is a constitutional instrument that shapes how the powers are performed in government.
Conclusion
The notwithstanding clause has arguably fulfilled its intended purpose of maintaining power at the provincial level. However, its use has raised concerns, particularly regarding its implications for minority groups who may be affected in favour of majority interests and political agendas. This forum showed there is a real interest and many opinions on the issues within Ontario’s legal community. As its invocation becomes more normalized at the provincial level, the debate surrounding its use continues to draw attention beyond the legal community. This conversation even had its moment on the national leader’s English language debate stage ahead of the federal election. Such engagement and media coverage promotes public awareness and discussion of the legislature’s priorities and of Charter protected rights.
If you want more perspectives and in-depth opinions from two of the panelists, they share their thoughts in the article “Does the Notwithstanding Clause Protect or Undermine Democracy? Two Opinions, One Hot-Button Issue”.
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