The Notwithstanding Act: a proposal for reform

At its birth 40 years ago, Sec. 33 of the Constitution Act, 1982, known as the "notwithstanding clause," was a solution in search of a problem. It empowered Parliament and the provincial legislatures to override some of the most important protections of the newly adopted Canadian Charter of Rights and Freedoms. Whether the notwithstanding clause was necessary or wise was questionable from the beginning. Still, it was the price of reaching agreement on the Charter, which belatedly gave Canada constitutionally protected human rights guarantees. So long as the notwithstanding clause remained taboo, that compromise held. But now the taboo has been shattered—by provincial governments shabbily advancing otherwise unconstitutional political objectives—and the notwithstanding clause has turned into a problem without a solution. Reopening the Charter to repeal it is impossibly fraught and likely, too, an overreaction. There are exceptional circumstances when temporarily derogating from certain human rights may be justified. Thankfully there is a way of taming the notwithstanding clause, short of amending the Charter, and it is easily within Parliament's grasp. Since 1867, the federal cabinet has had the constitutional power to reject—or "disallow"—the legislation of Parliament and the provincial legislatures. Ottawa has not used the disallowance power since 1943, which leads some to think it is a dead letter. But like the notwithstanding clause itself, the disallowance power hasn't disappeared from our law just because it is rarely used. In 1971, then-prime minister Pierre Elliott Trudeau offered to give up the disallowance power in exchange for constitutionally enshrined human rights guarantees—but the provinces rejected that bargain. A decade later, in the 1982 negotiations creating the Charter, the provinces realized their error and asked to repeal the disallowance power—but this time Trudeau balked. The result was a constitution with both the notwithstanding clause and the disallowance power. Former prime minister Pierre Elliott Trudeau, pictured in 1975. In 1971, Trudeau offered to give up the disallowance power in exchange for constitutionally enshrined human rights guarantees. Photograph courtesy of Wikimedia Commons In other words, since 1982 the notwithstanding clause and the disallowance power have been a package deal, like it or not. When premiers Doug Ford or François Legault too readily grab at the former, the federal government should trigger the latter, except in rare cases. What is needed is a law requiring the federal cabinet to protect the fundamental human rights of Canadians by exercising the Disallowance Power. Supreme Court precedent supports such a law. Since the earliest days of the Charter, the Court has repeatedly declared that Canadians' rights should not sink beneath the benchmark set by Canada's international human rights treaties. In the Court's words, "the Charter should be presumed to provide at least as great a level of protection as is found in the international human rights documents that Canada has ratified." Paramount among these is the International Covenant of Civil and Political Rights, a 1966 treaty Canada joined in 1976 and which today has 173 parties. You can think of the International Covenant as a sort of global minimum of what civilized countries expect of each other. The ground rules are familiar enough: don't arbitrarily arrest or torture people, show fairness to those accused of crimes, do not discriminate against minorities or the vulnerable, and protect basic freedoms of thought, expression, religion, and assembly. If using the notwithstanding clause puts Canadians in the rotten position of living outside the ground rules, then that is not just something to be resisted at a gut level, but something outright illegal in international law for violating the International Covenant. Simply put, the International Covenant is a legally-binding, globally-accepted yardstick to judge if using the notwithstanding clause goes too far. When does the International Covenant allow human rights to be put aside? In its words: In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. Gib van Ert practices public law and civil litigation in Ottawa and Vancouver and is the president of the Canadian Council on International Law. Photograph courtesy of Gib van Ert Two points stand out here. First, there has to be a "public emergency which threatens the life of the nation." Whatever that may mean, it surely doesn't include using the notwithstanding clause to kibosh a strike vote of teaching assistants or compel a woman to remove her hijab. Second, any derogation from the human rights in the International Covenant, like freedom of association or religion in these two examples, must stay within the lines of Canada's other international obligations and must not discriminate. The idea of using the notwithstanding clause intentionally to discriminate, for example against anglophones, or Muslims and Jews, is absolutely verboten. Amir Attaran is a professor in the faculties of Law and School of Epidemiology and Public Health at the University of Ottawa. Photograph courtesy of Amir Attaran This isn't just our opinion. The Government of Canada itself pledged to fellow countries of the International Covenant that it cannot allow the notwithstanding clause to be used freely. In two cases in the early 1990s, anglophones in Quebec complained to the United Nations Human Rights Committee that Quebec illegally used the notwithstanding clause to make French signage dominant. Ottawa took Quebec's side in those disputes but admitted that "Canada's obligation is to ensure that is never invoked in circumstances which are contrary to international law"—which is exactly correct. Would Parliament, by limiting the notwithstanding clause to the International Covenant, be poking a stick at Ford or Legault? They may well think so. But as provincial leaders, foreign affairs are not their business; the conduct of Canada's external affairs is the federal government's responsibility. If a province acts contrary to international law, it is the federal government that wears it at the international level. In that sense, provincial breaches of Canada's international obligations are objectionable intrusions on federal power. By stopping abuses of the notwithstanding clause, Parliament will be protecting federal control of external affairs. Ontario Premier Doug Ford, left, and Quebec Premier François Legault, speak with reporters after a meeting of Canada’s premiers in Ottawa on Sept. 18, 2020. The Hill Times photograph by Andrew Meade We recommend that the Government of Canada introduce, and Parliament enact, the Notwithstanding Act. Our rough draft of this law follows this article. Inspired by the Clarity Act, which squared a province's desire to secede with international law in a manner the Supreme Court approved, our Notwithstanding Act is designed to end wanton abuses of the notwithstanding clause by subjecting it to Canada's international legal obligations. How does the Notwithstanding Act do this? By serving as Parliament's written instructions on when to allow or disallow the notwithstanding clause. Each time a provincial legislature (or even a future Parliament) passes a law using the notwithstanding clause, the Notwithstanding Act legally obliges the federal cabinet to consider the disallowance power. If the law violates the fundamental human rights protected in the International Covenant, or otherwise violates Canada's international legal obligations, then Parliament's instructions are that cabinet must disallow it. If the case seems not clear-cut, then Parliament's instructions are that either the federal government or the provinces may turn to the Supreme Court for its opinion. We think this way of doing things—measuring out the rights violations each time the notwithstanding clause is used, not in some sweeping way, but in keeping with Parliament's will, the particular facts of each case, and guidance from Canada's human rights treaties and the Supreme Court—is the most democratic, surest way to prevent the clause being abused and turning into a political football. For if in our system of constitutional democracy Parliament, the Supreme Court, and the rule of law are not ultimately in charge, then who should be ? Amir Attaran is a professor in the faculties of Law and School of Epidemiology and Public Health at the University of Ottawa. Gib van Ert practices public law and civil litigation in Ottawa and Vancouver with Olthuis van Ert and is the president of the Canadian Council on International Law. He is an acknowledged authority on the application of international law in Canadian courts, and frequently acts in matters at the interface of domestic and international law. He is the former executive legal officer at the Supreme Court of Canada, where he served as principal advisor to two chief justices. The Hill Times Notwithstanding Act (1)Download