Conservatives are opposing the federal government’s intervention in a case now before the Supreme Court of Canada involving a legal challenge to Bill 21.Sean Kilpatrick/The Canadian Press
The conservative meltdown over the notwithstanding clause, now in its second week, shows no sign of abating.
The ruckus began, you’ll recall, over the federal government’s intervention in a case now before the Supreme Court of Canada involving a legal challenge to Bill 21, Quebec’s infamous law banning the wearing of religious symbols across much of the public service, which for some religions is tantamount to a hiring bar.
The law might well have run afoul of the Charter of Rights, which bans discrimination on the grounds of religion, had the government of Quebec not inserted a provision declaring it applied “notwithstanding” the Charter – that is, invoking the Charter’s Section 33, aka the notwithstanding clause.
The federal factum takes no position on the constitutionality of the law itself, but rather asks the Court to rule on two questions regarding the use of the notwithstanding clause. One, where the clause has been invoked, should courts nevertheless be permitted to rule on whether a Charter right has been abrogated? And two, should the courts be permitted to rule on whether the repeated invocation of the clause to preserve a given law amounts, not to suspending the right in question, but, past a certain point, to abolishing it? The feds propose the answer to both should be yes.
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The first is the more straightforward. The original argument for including the clause in the Charter was that it would be used in response to a court ruling striking down a law, where a legislature could be persuaded the public interest demanded the law should continue to apply. But increasingly the practice, as in Bill 21, has been to invoke the law pre-emptively, that is, in the absence of any court ruling.
Clarifying that the courts may issue a finding that the law, though exempted from the usual process of judicial invalidation, was still in violation of Charter rights, would go some way to restoring the original understanding. To be sure, it would have no legal effect. But the public would at least be in a better position to assess which would be the graver wrong: striking the law down, or allowing it to stand.
The intent of the second is again, not to alter the notwithstanding clause’s original understanding, but to preserve it. It’s patently clear from the text that the effect of the notwithstanding clause was not intended to be unlimited: that’s why it must be renewed after five years. True, there’s no explicit limit on the number of times it can be renewed. But if the effect of repeated renewal is that the right effectively ceases to exist – that what was intended to be temporary has become permanent – it’s at least arguable that the clause has been abused.
Anyway, that’s it. That’s the extent of the federal intervention: Let the courts issue declarations that have no effect, and maybe make the number of times the clause can be renewed fewer than infinite. You’d never know it from the reaction among conservatives online, and in the conservative media. Why, it was nothing less than an attempt to rewrite the Constitution! The Carney government was asking the Court to nullify the notwithstanding clause! At the least it was in breach of the “Constitutional compact” of 1982, the agreement among the federal government and the provinces that allowed the Charter to pass, and as such deliberately provoking a constitutional crisis – even separation!
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If this response strikes you as vastly out of proportion with what has actually been proposed, you should understand that this is not really about the notwithstanding clause. The howls of outrage in defence of the 1982 “compact,” which the federal proposals would do nothing to alter, are at odds with the uncomfortable fact, as I have argued before, that the compact has already been breached – by the provinces. It is the provincial governments who, by the increasing frequency, not to say flippancy, of their recourse to the clause have turned what its drafters intended to be an emergency safety valve into what the late senator Eugene Forsey always said it was: a dagger pointed at the heart of the Charter.
I’ve quoted the contemporary statements of the leading constitutional players at the time, such as Jean Chrétien, as to their understanding of how the clause would be used. Perhaps you find that unconvincing: Mr. Chrétien was a Liberal, after all, and a skeptic of the clause. Very well. Perhaps you might be interested in the views of Peter Lougheed, the former Conservative premier of Alberta and one of its principal champions. By 1991 he was sufficiently concerned at how the clause was being used that he proposed three amendments to it: one, to forbid it from being invoked pre-emptively; two, to require it to be used for a specific purpose, rather than, as it had been in Quebec under the Parti Québécois, indiscriminately; and three, to require a supermajority of the relevant legislature to pass it. What would today’s not-a-hair-on-its-chin absolutists make of that!
So no, this is not really about notwithstanding, or duelling understandings of what was negotiated in 1982. Passions are not so inflamed by such stuff. What is it really about? It’s about the Charter. Forty-odd years after it was passed, large sections of the conservative movement, especially amongst its intellectual vanguard, remain as implacably opposed to it as ever. “The Charter was an American import that undermined our Westminster system of government,” writes Ken Boessenkool, former adviser to Stephen Harper. “The Charter was a mistake,” agrees Carson Jerema, comment editor at the National Post. “It should never have become part of the Constitution.”
Or take the reaction of international law professor Yuan Yi Zhu, a former senior policy adviser to Pierre Poilievre. “The last 43 years of Canadian constitutional law have been nothing but a disaster for the country,” he posted on X. “The Charter era has left the country poorer, less safe, in some respects ungovernable. The only conservative thing to do is to burn it down and start again.”
To be sure, he was careful to post an addendum some hours later, stipulating that it was not the Charter that had driven him to such lengths (“I am not a revolutionary by nature”), but the judges. “Taken at face value and interpreted in the common law tradition, much of the Charter would be fine.” But if the problem is just the judges, why is the first impulse to reject the Charter? Is this much different than saying “I think the courts should have the power to strike down laws I dislike, but not the laws I like”? It’s one thing to object to this or that Supreme Court judgement, or even to some broad trends – as I do – but for many of the Charter’s conservative critics it’s the whole edifice of post-1982 jurisprudence they find abhorrent.
Do I exaggerate? Here’s Michael Plaxton, a fine legal scholar who has nonetheless persuaded himself of the need to overturn the lot. His objection is to the “Charter wholesale, rather than Charter retail” – to “the cases and doctrines that guide how judges must interpret the Charter and approach Charter adjudication across the board.” These sort of decisions, he writes, are “structural.” They cannot be overturned “without throwing the entire body of Charter doctrine into upheaval and basically starting from scratch.”
How did conservatism, which used to be based on limited government and a temperament of restraint, come to harbour such revolutionary aims, in the service of releasing government from constitutional limits?
While he thinks “that might ultimately be very much to the good,” he admits it would be “chaotic” and not something he would necessarily entrust to the judges themselves. But, he muses, could it be accomplished via “a much more aggressive use of the [notwithstanding clause] – i.e., using it to alter the entire framework for approaching Charter rights and adjudication across the board? That would not nibble around the edges – it would affect how every single Charter case in every context was dealt with over the lifespan of the legislation invoking the Clause.” The suggestion was met with approving comments by other conservative thinkers.
I cite this only to emphasize how conservative, and Conservative, opinion has radicalized, and is radicalizing, on this issue. Their objection to the Carney government’s very modest interpretive suggestions regarding the notwithstanding clause is not, I suspect, that they would lead to much change in how it was used, but rather that it might stand in the way of the “much more aggressive” use of the clause they have in mind – whether the purpose is the wholesale rewriting of Charter jurisprudence Prof. Plaxton envisages, or simply the normalization of the legislative override, and consequent neutering of the Charter, that is others’ ambition.
How did conservatism, which used to be based on limited government and a temperament of restraint, come to harbour such revolutionary aims, in the service of releasing government from constitutional limits? I don’t think the present situation can be understood outside of the broad historical and political context of Canada, which is that, for the last 138 years, the Liberals have won two elections to every one for the Conservatives. Many of the pathologies of Canadian politics stem from this. If the besetting sins of the Liberals, as “the natural party of government,” is an insufferable arrogance and smugness, for the Conservatives it is a seething, chip-on-the-shoulder resentment of the existing order. In some cases this has metastasized into a rejection of Canada itself, a bizarre mirroring of the Liberals’ own tendency to identify themselves with Canada (“l’état, c’est nous”).
It seems hard to divorce the current fracas from the fact that the vast majority of the judges who have been tasked with interpreting the Charter over the years have been appointed by Liberal prime ministers – and appointed, what is more, without any of the requirements for legislative or other oversight that in other countries ensure broader, bipartisan input, and therefore legitimacy for their highest courts (the toothless advisory panels instituted by Justin Trudeau fall far short of this). Were Canadian politics more genuinely contestable – were the Liberals and the Conservatives each as likely as the other to form a government after any given election – and were judicial appointments no longer the personal prerogative of the prime minister, perhaps we would have more judicious judges, and perhaps their decisions would not be viewed with such suspicion in Conservative circles.
There’s more to it, of course: the dominance of liberal, if not Liberal thinking in the law schools is as pronounced. But these strike me as more fruitful areas for conservatives, large C and small, to focus on than abolishing the Charter, de jure or de facto, or throwing out four decades of jurisprudence. Yes, it would take longer to achieve the desired result. But conservatives are supposed to be patient.