Why we need 'notwithstanding'

National Post
Published: Friday, February 16, 2007

Re: Notwithstanding, Peter Russell, Feb. 13.

Prof. Russell argues that Parliament needs the guts to strike down judicial excesses, whether definitions of marriage or something else. Democracy means that the people, not judges, should have the last word. For example, on Feb. 8, the Supreme Court overturned the Ontario Court of Appeal and reinstated an unlawful "order" made by Judge Elizabeth M. Stewart to jail a civil debtor. The law protects people from such judicial excess, but the Supreme Court ruled that no person may challenge an unlawful act of the court without first putting up substantial money. Although some applauded, Canadian Charter rights, and rights under Article 6.1 of the European Convention on Human Rights (1950), were in essence stripped from all people of modest means.

People usually view Canadian Charter rights as protection from unlawful government actions. Judges are not elected but instead appointed by the Crown, and so Prof. Russell correctly observes that the notwithstanding clause is essential to the people in order to safeguard them (through their elected representatives) from unlawful acts of the Crown and its judges. As he puts it, the wise statecraft of Blakeney, Lougheed and Lyon foresaw the necessity of "a parliamentary check on a fallible judiciary's decisions."

William D. Nichol.

executive director,

Canadian Justice Review Board, Ottawa.

Notwithstanding
PETER RUSSELL, Special to the National Post
Published: Tuesday, February 13, 2007

It is surely only in Canada that something called the "notwithstanding clause" could find a place in the lexicon of public debate. It is also only in Canada that a piece of constitutional furniture known as "the Charter" (a.k.a. the Canadian Charter of Rights and Freedoms) could become a popular icon, deserving of an annual day of celebration and a virtual blowout on its 25th birthday.

The fact that the Charter has become an object of worship -- a symbol of everything right and good--has thrown the notwithstanding clause (which is part of the Charter) into bad political odour. Under this clause the parliaments of Canada can insulate a piece of legislation from Charter challenge for five years. Brian Mulroney, sniffing the populist breeze, once declared that so long as it contained the notwithstanding clause, the Charter of Rights "was not worth the paper it is written on."

Mulroney and his fellow Charter-worshippers are wrong. I am here to plead the case not only for retaining the notwithstanding clause but also for occasionally having the guts and brains to use it. It is an uphill battle, as we witnessed when another Conservative prime minister, Stephen Harper, refused to use the notwithstanding clause even though it was needed to give effect to his legislative objective of restoring the heterosexual marriage monopoly in Canada.
My point is to defend the legitimacy of Parliament debating and deciding how marriage should be defined in Canadian law. Like the many Canadian judges who have examined the matter, I see no justification for limiting the rights of gays and lesbians to enjoy the same benefits that heterosexual Canadians derive from state recognition of their marriages. It would have been better if our parliamentarians had been as clear as our courts have been about the reasons for supporting legislation changing the traditional definition of marriage, instead of repeating Paul Martin's mantra that it was simply a matter of Charter rights. Prime Minister Harper might have more respect if he had the guts and the brains to use the notwithstanding clause to re-test the will of Parliament in a meaningful way.
To defend the notwithstanding clause is not to oppose the Charter. It was included in the Charter for a very good reason: a belief that there should be a parliamentary check on a fallible judiciary's decisions on the metes and bounds of our fundamental rights and freedoms.

Former premiers like Saskatchewan's Allan Blakeney, Alberta's Peter Lougheed and Manitoba's Sterling Lyon, who insisted on the inclusion of the notwithstanding clause, were no less civil libertarian than Pierre Trudeau. They welcomed the opportunity the Charter gives citizens to test the laws and practices of government against the rights and freedoms in the Charter. While most of the time the country would live with the decisions of judges on the requirements of the Charter, a clause was needed for those exceptional occasions when elected legislators conclude that the way judges have construed a Charter right or freedom is an unreasonable constraint on democratic power or threatens a vital interest of society.

The story of the notwithstanding clause's use and non-use through the Charter's first quarter-century has not been an encouraging story for its fans. Indeed, the most famous use of the legislative override seems to bolster the case of its detractors. I refer to Robert Bourassa's decision in December, 1988, in the heat of the constitutional battle over the Meech Lake Accord, to invoke the notwithstanding clause to restore Quebec's French-only sign law, which had been struck down by the Supreme Court of Canada. The decision was a nail in the coffin of the Meech Lake Accord. While that may be the one good thing Trudeauites can say about the notwithstanding clause, it is not an advertisement for it.
Abusive uses of the Charter's legislative override do not justify getting rid of it or refraining from using the clause in an appropriate manner. Judges, like legislatures, are fallible. The benign reason for non-use of the notwithstanding clause is that Canadian judges have done a pretty good job in interpreting and applying the Charter. There have been exceptions, but on the whole the judiciary's interpretation of the Charter has not put pressure on elected legislators to exercise their power to insulate their laws from Charter-based judicial review.

There have been a few Charter decisions of our highest court that might well justify use of the notwithstanding clause. In my view the top candidate is the Supreme Court's decision in the judicial remuneration case. The Court's majority found that the Charter right of a person charged with a criminal offence to be tried by "an independent and impartial tribunal" requires that, in setting the pay levels of Canadian judges, legislatures must act on recommendations from independent commissions. If a legislature decides to pay less than a compensation commission recommends, it can be reviewed and overturned in the courts. In other words, the judges have the final word in deciding how much they should be paid. Most Canadians, if they knew about this decision, would likely be disturbed by the judges' conflict of interest and would support the use of the override if it is needed to protect the recent decision of Canada's Parliament not to accede fully to the increases in judicial salaries recommended by the federal compensation commission.

Some years ago, Howard Leeson commented that the notwithstanding clause appeared to be a "paper tiger" that was "available in theory, but not used in practice." Maintaining a sensible attitude to the use of the Charter's notwithstanding clause is more a matter of having brains than of having guts. Politicians' fear that the electorate will punish any government that uses the notwithstanding clause is not based on solid evidence. When three colleagues and I did some in-depth interviewing of elected politicians and citizens 20 years ago, we found shifting partisan differences in support for using the legislative override. Even though public regard for the Charter as an icon has probably strengthened, I doubt that there is a settled majority opinion against using the legislative override.

What is needed is the constitutional wisdom that led to including the notwithstanding clause in the Charter -- sufficient respect for parliamentary democracy not to let the judiciary always have the last word on rights and freedoms. Let us hope that the next generation of political leaders in Canada will eschew the simplistic thinking of Mulroney and Martin and follow the wise statecraft of Blakeney, Lougheed and Lyon.

- Peter Russell is University Professor emeritus at the University of Toronto. He is a political scientist who specializes in judicial, constitutional and Aboriginal politics. This essay is excerpted from the February issue of Policy Options, in conjunction with the McGill Institute for the Study of Canada's conference, The Charter @ 25, Feb. 14-16 2007 in Montreal.