Lessons from the notwithstanding clause debate

When I was an assistant to the opposition leader in Newfoundland and Labrador in the early 1980s, I would often get into lengthy discussions with my friend and co-worker, the late David Kennedy, who was a poet, journalist, and political animal. One day we were discussing poetry and I asked if he knew the work of F.R. “Frank” Scott. “Who is F.R. Scott?” he asked. I was quite happy to expound on Scott’s background as an academic, crusading lawyer, poet, and a founder of the Co-operative Commonwealth Federation, the precursor to the NDP. Kennedy challenged me to go out into the hallway of the Confederation Building and ask the first person we met if he or she knew of Scott. Fortunately for me, the first person we met was the deputy clerk of the legislature. Not only did he know of Scott, but he also had his book, Essays on the Constitution, on his bookshelf. Kennedy was chagrined, and immediately began reading up on Scott. He was impressed. I was reminded of this while reading an illuminating 2007 account in Policy Options by Tom Axworthy of the repatriation of the Constitution by Pierre Trudeau’s government in the 1980s. Within the current controversy over the Ontario government’s use of the notwithstanding clause, it provides a great deal of context. According to Axworthy, Trudeau invited Scott to the ceremony for the signing of the repatriation of the Constitution in April 1982 and introduced him to the Queen, saying, “Everything I learned about the Constitution, I learned from this man.” Scott, in telling the story afterwards, frustrated at the insertion of Section 33, the notwithstanding clause, in the Constitution, would say “he didn’t learn enough!” Scott’s assessment came from his battles with the authoritarian government of Maurice Duplessis in Quebec, long before the Charter of Rights and Freedoms. It may have been this feeling that led Trudeau to initially assess the Charter as a failure because of the horse-trading that led to Section 33. Nonetheless, the Charter was soon hailed as a sea change in Canadian politics, as the courts plowed ahead in establishing jurisprudence in legal rights, human rights, gender equality, and language rights, among many others. The activism of the courts since the 1980s left more cautious legislators and politicians behind, and the resultant backlash against “judge-made law” among traditionalists was not surprising. It has now manifested itself in Ontario’s bill to reduce the size of Toronto’s city council, containing the notwithstanding clause, and Premier Doug Ford’s brash statements claiming greater legitimacy for elected officials over judges. We should be able to draw lessons from this controversy. In a constantly evolving political climate, liberal-minded legislators should take the initiative to ensure laws respond to the demands of the public. Not acting will only leave the field open to the courts and bring the political realm into disrepute. At the same time, if a judgment is not in line with its assessment of the public will, or threatens the supremacy of the legislature, any government has a right to appeal it on the basis of law or the bulwark already provided in Section 1 of the Charter: “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Or, as a last resort, it can take the risk of inserting the notwithstanding clause, as Quebec did on the issue of English signs in 1988. Although it caused a fury among English Quebecers at the time, it was used to prevent Quebec nationalists from being inflamed. Bill 178’s provisions expired five years later and were not renewed, after international criticism and unwanted media attention. That is the genius of the clause: it has a best-before date. In 2023, a new Ontario government may depart from the precedent set by Premier Ford. If history is any guide, over-use of Section 33 will prove to be an embarrassment, and the Ontario Progressive Conservatives will apply it at their peril. It may not offer much solace to the electors and future councillors of Toronto, but at the very least, the debate over the clause has been both a valuable civics lesson for the public and a cautionary tale for Canadian politicians. Somewhere, Scott is looking down and saying “I told you so.” Andrew Caddell retired last year from Global Affairs Canada, where he was a senior policy adviser. He previously worked as an adviser to Liberal governments. He is a fellow with the Canadian Global Affairs Institute and a principal of QIT Canada. He can be reached at pipson52@hotmail.com. The Hill Times

Lessons from the notwithstanding clause debate

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Lessons from the notwithstanding clause debate

F.R. Scott, the man who schooled Pierre Trudeau on the Constitution, was frustrated by Section 33’s insertion in the Constitution. His words have come back to haunt us.

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