Canadians must not stand for the notwithstanding clause’s pre-emptive use

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Sheema Khan is the author of Of Hockey and Hijab: Reflections of a Canadian Muslim Woman.

The Qur’an describes a judgment rendered by the Prophet David, in which two brothers appear before him; one has 99 ewes, the other, only one. The latter complains that his brother wants his sole ewe to add to the 99 he already owns. David immediately rules that the owner of the 99 ewes is in the wrong.

Then, the two brothers vanish. David realizes the litigation was a test from God, and he had failed: He had rushed to judgment without hearing both sides. It’s a universal lesson in basic fairness. In a dispute between two parties, it’s only fair to allow each party to plead its case.

Canada’s judicial system and Charter of Rights say otherwise. When a provincial or federal legislature proposes a law that a court has ruled would deny Canadians of their fundamental freedoms, legal rights or equality rights, it can invoke the notwithstanding clause to override the order. Legislatures can also deny those affected the ability to plead their case before the courts by invoking the clause pre-emptively, as Saskatchewan, Alberta, Ontario and Quebec have done or have threatened to do.

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The Supreme Court of Canada has deemed such pre-emptive use legal. But is it just? Quebec’s Bill 21, which the legislature shielded with a pre-emptive use of the notwithstanding clause in 2019, has been making its way through Canada’s courts. It is now being considered by the Supreme Court – but not because it might violate fundamental individual freedoms. Instead, the case is being heard because it allegedly violates English-language minority rights, which the clause cannot override.

The Supreme Court will also hear a case from Saskatchewan in which the government used the clause pre-emptively to remove any challenge to a law requiring parental consent for students under 16 to use preferred pronouns at school. Unlike the courts in Alberta, Ontario and Quebec, though, Saskatchewan’s appellate court said that it would examine the case despite the clause being used, and let the public know how it violates fundamental freedoms. Pretty bold on its part, in contrast to the helplessness shown by courts in Alberta, Ontario and Quebec. And now Canada’s highest court will decide whether lower courts can do the same: step in and issue a declaration when a Canadian is not allowed to argue for basic freedoms.

So here we are. You can fight a traffic ticket in court; people accused of serious crimes have their day in court to mount a vigorous defence. And yet, our Charter not only allows our legislators the absolute power to override basic rights, it grants the power to deny any opportunity to fight against those violations. It feels Kafkaesque – but the better descriptor might be Trumpian, in how it bullies the powerless. How ironic that Canadians appear largely united in our displeasure with that man, yet accept a system that allows governments to take our vulnerable minorities’ freedoms away without legal recourse.

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This is effectively the stance of the governments of Ontario, Alberta, Quebec and Saskatchewan; if you live in any of these provinces, this is what your government is saying in your name, as they support Saskatchewan’s argument that courts have no right to interfere with the pre-emptive process. Even if you agree that the notwithstanding clause is a necessary compromise between elected legislatures and unelected judges, do you agree to its pre-emptive use so that your fellow Canadians have no way to argue for their fundamental freedoms before the courts? If you aspire toward a Quebec with full laïcité, for instance, do you want to get there by Trumpian means?

If you don’t, then let your provincial representatives know. In fact, in your next provincial election, demand that all parties promise not to invoke the notwithstanding clause pre-emptively. Make it a ballot issue. After all, it’s about basic fairness - a fundamental Canadian value.

In his stirring speech this month in Gander, N.L., to commemorate the 25th anniversary of 9/11 and the way that Canadians helped those whose flights were rerouted there, former prime minister Jean Chrétien reminded the world who we are. “Welcoming people from all over the world, caring for each other, including the weakest in society, is a sign of strength,” he said. “We embrace our friends, and we help them in their moment of need.”

Let’s live up to those values by making it clear to our politicians that we, the people, do not want our governments to deny all opportunity to argue for our rights before the courts. Say no to pre-emptive use of the notwithstanding clause.