The two extremes of the notwithstanding clause

It is difficult these days to find a balanced view on the notwithstanding clause, Sec. 33 of the Constitution Act 1982. At one extreme are those who employ its override power for transparently unjust purposes, as in Quebec’s Bill 21—which became law in 2019—or those, like Conservative Leader Pierre Poilievre, who propose to use it just for the sake of doing so, to flex their populist muscles and show how they are “tough on crime.” At the other extreme are the Charter purists who view the clause as illegitimate in principle, and therefore to be banished from federal use by law or resolution. Or even from provincial hands by using the long-dormant federal power of disallowance. The second kind of extremism is encouraged by myths about the clause’s origin. It is widely assumed the framers of the 1982 Constitution Act agreed Sec. 33 was to be invoked only in rare and urgent circumstances, and accompanied by great “stigma”—presumably to discourage any further use. But there was no such agreement at the birth of the notwithstanding clause. The override power is the result of confrontation between two different and equally legitimate outlooks which collided at the constitutional conference of 1982. Ralph Heintzman is a retired public servant who held many senior executive positions, including assistant secretary to the Cabinet for constitutional affairs. Photograph courtesy of Ralph Heintzman On one side, were those—like former prime minister Pierre Trudeau—who favoured judicial supremacy, believing judges the best trustees of rights and freedoms. On the other side were the majority of provincial premiers led on this issue by then-Manitoba premier Sterling Lyon and then-Saskatchewan premier Alan Blakeney. They argued for parliamentary supremacy, a sacred principle of Westminster parliamentary democracy. Compromise between these two outlooks led to the notwithstanding clause. At the 1982 constitutional conference, Trudeau Sr. got his Charter and the language rights so dear to his heart. But the premiers got the notwithstanding clause, preserving the principle of parliamentary supremacy. Since then, most of the good press has gone to the Charter. Even the angry populists of the 2022 Ottawa “Freedom Convoy” brandished their alleged “Charter rights.” But the principle of parliamentary supremacy remains equally legitimate. And has perhaps grown in importance since 1982. One of the deeply worrying developments since the adoption of the Charter, over 40 years ago, is the growing crisis of democracy. They may be connected. Scholars of public opinion and democracy have suggested the rise of government by judges is one of the factors in declining public support for democracy. Legislatures have lost more and more of their previous power to unelected bodies, including the courts. Ninety years ago, less than half the world’s democracies had judicial review regimes. Now almost all of them do, including Canada, thanks to the Charter. A growing regime of “rights without democracy” has drained away much of the responsibility and authority of elected politicians and, with them, much of their legitimacy. Whether or not the scholars are right, it is clearly necessary to establish a balance between judicial review and democratic decision-making. The role of the courts is essential in the interpretation of laws, and as constitutional referee. But we do no service to democracy when we surrender decision-making on important public matters—unnecessarily or inappropriately—to judges. For the health of democracy, we need to be able to balance a constitutional Charter of Rights, normally interpreted by the courts, with final deference—in clearly defined cases—to the democratic principle. That is exactly what the notwithstanding clause does. And it is well designed for the purpose. Any use of Sec. 33 is subject to a five-year limitation, and must be re-enacted at each five-year interval, ensuring repeated debate and reconsideration of its merits. After patriation, for example, all Quebec legislation was subject to the notwithstanding clause, a practice eventually abandoned. But the notwithstanding clause must be used responsibly with careful consideration of conflicting public goods. Quebec’s “Law 21,” with its openly discriminatory purpose, does not meet that test. Nor does Poilievre’s populist posturing on criminal sentencing, which aims only to feed and exploit prejudice and fear. The notwithstanding clause is an important part of the Canadian constitution, as valuable, in its own way, as the Charter itself. The two extremes of Charter purism and irresponsible posturing do not do it the justice it deserves. Ralph Heintzman is a senior fellow of Massey College in the University of Toronto, and an honourary senior fellow in the Graduate School of Public and International Affairs at the University of Ottawa. He held many senior executive positions in the Government of Canada, including assistant secretary to the Cabinet for constitutional affairs. His latest book is The Human Paradox. The Hill Times