Why does the ‘notwithstanding’ clause even exist?

Thestar.com
September 12, 2018
Alex Ballingall

It was the trade-off that may have saved the deal, but for the NDP’s young justice critic, the “notwithstanding” clause was nothing short of a deal-breaker.

This was back in 1981 and 1982, when high-stakes talks at the top rungs of Canadian politics produced an accord that would ultimately take control of the Constitution from the United Kingdom and enshrine a compendium of rights in the law of the land.

Then-NDP MP Svend Robinson shown in this 1997 photo voted against prime minister Pierre Trudeau’s constitutional reform package in the ’80s. He was the only MP to reject it because of the “notwithstanding” clause. “It was an assault on the most basic principles of the Charter,” Robinson said Tuesday.

But Svend Robinson thought Section 33 of the brand new Charter of Rights and Freedoms gave governments an escape hatch that was much too large. To his dismay, this so-called notwithstanding clause applied to core elements of the Charter, like legal rights, freedoms from discrimination and freedom of expression.

Robinson couldn’t stomach that. So he voted against prime minister Pierre Trudeau’s constitutional reform package, the only MP to reject it specifically because of the notwithstanding clause.

“It was an assault on the most basic principles of the Charter,” Robinson said Tuesday. “I really felt a sense of betrayal, that this was just a body blow.”

Now the notwithstanding clause is back in the news, after Ontario Premier Doug Ford vowed to use it to protect his bill to slash the size of Toronto city council from being struck down for violating the Charter. But this esoteric section of the Constitution has been controversial since the beginning, when it was included in the Charter during the horse-trading that resulted in the historic Constitution Act of 1982.

“This was really the big compromise,” said University of Ottawa law professor Adam Dodek.

“We wouldn’t have the charter without it, and we probably wouldn’t have patriated the Constitution without it.”

The idea of a notwithstanding clause, also known as the “override” power, was at least 20 years old at the time. A similar provision was included in the Bill of Rights passed by John Diefenbaker’s Conservative government in 1960. The clause was included in Pierre Trudeau’s War Measures Act a decade later, when his government expanded police powers and suspended civil liberties in response to terrorist activity in Quebec. Alberta and Saskatchewan also had override clauses in their provincial bills of rights.

It was those provinces, along with Manitoba, that pushed for a notwithstanding clause in the early 1980s. Patricia Paradis, director of the Centre for Constitutional Studies at the University of Alberta, said the clause was seen as a way to protect the power and authority of provincial legislatures from court rulings that could overturn their laws, she said.

“They didn’t want to be in a situation where there was an errant court, a court that was going in the direction that they felt the public was not.”

The prime minister, however, was not a fan of the idea. In their 1982 book on the constitutional talks, The National Deal, journalists Robert Sheppard and Michael Valpy describe how Ottawa resisted inclusion of the clause but accepted it in the end as a necessary evil. They call the clause a “peculiarly, perhaps embarrassingly, Canadian device.”

“Only Canada could have a Constitution that doesn’t quite have judicial supremacy or parliamentary supremacy,” joked Asher Honickman partner at Matthews Abogado LLP and founder of the legal think tank Advocates for the Rule of Law.

But Honickman said the clause wasn’t intended as a free pass around the Charter. Indeed, Alberta premier Peter Lougheed told the provincial legislature in 1981 that the clause should be used only “when major matters of public policy were being determined by the court.”

Yet in light of Premier Ford’s actions this week, Robinson said Ford’s use of the clause could “embolden” other governments to follow suit on arguably minor issues. “Now my fear is: who’s next?”