Ottawa staked out its arguments to limit the notwithstanding clause in a legal filing to the Supreme Court of Canada on Wednesday in the landmark case over Quebec’s secularism law, Bill 21.Sean Kilpatrick/The Canadian Press
Well, that has set the proverbial chat among les pigeons. The federal government has finally revealed the arguments it will make as an intervenor in English Montreal School Board v. Attorney General of Quebec, otherwise known as the Bill 21 case, now before the Supreme Court of Canada, having submitted its factum at the last possible date.
It is a profoundly disappointing document. If you thought the government of all Canadians was going to at last take a stand against a law that effectively imposes a religious hiring bar across much of the Quebec public service – if you thought the promises of the former prime minister would be kept by the current Prime Minister – well, you thought wrong. “The Attorney General of Canada,” it opens, “takes no position, on any basis whatsoever, on the constitutional validity of the provisions of the Act respecting the laicity of the State,” Bill 21’s formal name.
If you thought, at least, that the federal government would take a position against the indiscriminate use of the notwithstanding clause to pass legislation that would otherwise run afoul of the Charter of Rights, well, you were half right. The factum does ask the Court to limit the repeated use of the clause, which must be renewed every five years, where the point is reached that the rights in question are not merely suspended but effectively extinguished.
And it asks the Court to rule that the notwithstanding clause should not be so construed as to prevent courts from ruling on whether a given law violates the Charter, even if the law, thanks to the override, remains in force. But it does not go so far, though it had been expected it might, as to ask the court to forbid the pre-emptive use of the clause – that is, in advance of any adverse court ruling – as is increasingly becoming the practice, not only in Quebec but in other provinces as well.
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Still, the very suggestion that the Court might place any limit, however slight, on provincial use of the notwithstanding clause was enough to set off explosions among the anti-Charter right, for whom the clause has assumed the status of a holy relic. Outrageous! Scandalous! An unconstitutional power grab that would rewrite the political compact that underpins our Constitution! Sure to set off a constitutional crisis/lead to separation/invite governments to ignore the Court’s rulings! The last may have been meant as a warning, but it read as a threat. Nice little country you got there. Pity if anything should happen to it.
The ostensible basis for all this rending of garments, beyond simple dislike of the Charter, is the notion that the notwithstanding clause was a crucial part of the “constitutional bargain” that led to the adoption of the Charter, together with the rest of the package of constitutional amendments now known as the Constitution Act, 1982. Mind you, lots of things that were part of original constitutional bargains are later discarded – the three-fifths compromise, for instance. Times change, and so do constitutional bargains.
But never mind: Let’s accept that the notwithstanding clause was part of the 1982 bargain – that, as it is often said, the Charter would not exist without it. What, however, was the understanding on which that bargain was based? How did the people who drafted the Charter think the notwithstanding clause would be used?
We don’t have to guess at this. They told us at the time. It would only be used, said Roy McMurtry, then Ontario’s attorney-general and one of the authors of the “kitchen accord” that sealed the constitutional deal, “in the unlikely event of a decision of the courts that is clearly contrary to the public interest.” It was “a safety valve,” his federal counterpart Jean Chrétien agreed, “to correct absurd situations ... unlikely ever to be used except in non-controversial circumstances.”
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Constitutional scholars concurred. It “will rarely be used,” predicted former Supreme Court justice Gérard La Forest. “The exercise of the power would normally attract such political opposition that it would rarely be invoked,” said Peter Hogg, the eminent professor of law.
That was certainly true for a time. Outside of Quebec, where the Parti Québécois government inserted it in every bill in a three-year tantrum at having failed to prevent the constitution from passing, the clause was well on its way to becoming a dead letter. From 1982 to 2017, just four attempts were made to use it, none of which came to much. Since then, however, it has been invoked eight times in four provinces, all of them governed by conservative (large C or otherwise) parties.
That the clause should suddenly have come into such frequent use, just as conservatism, once a counsel of restraint, was morphing into its current revolutionary-populist incarnation, is no coincidence. The intent is clear: to remove any lingering taboo surrounding the clause, making what was once the exception the rule; to invoke it, not occasionally, in extreme cases, but routinely, in every case; and so, if not to abolish the Charter, then at least to eviscerate it.
If anyone has overturned the constitutional bargain, therefore, it is the premiers. It is they, not the courts or the feds, who have unilaterally amended the constitution. Is it to be imagined that the Charter’s advocates, Pierre Trudeau in particular, would have agreed to the clause if they had known it would be used so routinely, so casually? And, the bargain so clearly having been broken, should the federal government simply stand back and do nothing?
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The bargain, after all, wasn’t only between the Charter’s advocates and its opponents. It was also between the federal government and the provinces. The 1982 Constitution was a broadly decentralizing document, particularly in areas of interest to Quebec. It entrenched provincial control of natural resources, subjected future constitutional amendments to provincial consent, and allowed provinces to opt out of constitutional amendments that reduced their powers – with compensation, in matters of language or culture.
In addition, it entrenched bilingualism at the federal level, obliged the federal government to provide equalization to the provinces in perpetuity, and guaranteed Quebec three of the nine Supreme Court justices. And more: Quebec alone was spared the general obligation, to which all other provinces are subject, to provide schooling in the minority official language (it is bound only to do so for children whose parents were educated in English in Canada).
The only thing the feds got in return was the Charter. Should it be allowed to wither and die, it is not only the balance between government and citizens, or between the legislature and the courts, or between majorities and minorities, that would be altered, but that of the federation itself.
The Charter was not so radical an innovation as it is made out. Pure, unvarnished parliamentary supremacy, of the kind the Charter supposedly overturned – or would have, had the notwithstanding clause not been inserted – has never been the tradition in this country. Unlike in Britain, legislation here has always been subject to judicial oversight. Long before the Charter, there was the British North America Act, delineating the division of powers between the federal and provincial governments.
And before the BNA Act there was the Colonial Laws Validity Act, ensuring that colonial governments did not overwrite imperial law. Judicial review was built into our legal and political structure from the start, not by appeal to Montesquieu or Locke, as in the American experience, but by dint of our status as a colony and our divisions as a federation. Somebody had to adjudicate these disputes, and that somebody was the courts.
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All the Charter did, as I have said many times, is let the people in on the game. Rather than merely ensuring that one level of government did not impinge on the prerogatives of another, now the courts would also patrol the boundary between government and citizens. The Charter amounts to a set of promises: In signing it, our governments vowed to remain within certain limits, notably with respect to the rights of individuals and minorities. But if such promises are to have any meaning, they must be enforced by an impartial arbiter. That’s what the courts are for.
To allow governments to overrule the courts, as through the notwithstanding clause, is to allow them to weasel out of those solemn promises. At best it permits them to be judges in their own cause, to decide for themselves whether they have kept their word. Perhaps the framers of the 1982 Constitution intended to make allowance for that in certain exceptional circumstances. But to do so at will turns the Charter to mush.
So some reeling in of the clause seems in order, if only to restore the balance struck in 1982. It doesn’t seem out of the question that the Courts, as interpreters of the constitutional text, might be the ones to restore its application to its intended meaning. When the Supreme Court ruled, in the 1988 case of Ford v. Quebec (Attorney-General), that governments had more or less complete discretion to invoke it as they liked (beyond the obligation to expressly declare which Charter sections they were overriding), it was, after all, ruling: It did not dismiss the whole question as none of its business. Since then, the facts have changed, dramatically. It does not seem entirely unreasonable that the Court might revisit its decision.
To allow governments to overrule the courts, as through the notwithstanding clause, is to allow them to weasel out of those solemn promises.
But the better path would be for the feds to do it. We talk about the 1982 constitutional bargain. But the original constitutional bargain, the one at our founding in 1867, was that the federal government would be the defender of rights against the depredations of local majorities. And the instrument of that defence – Macdonald and Brown were both explicit on this – was to be the disallowance power. As for many years it was, until the courts took on the job.
Disallowance, to be sure, has lately fallen into disuse. So, for more than 30 years, had notwithstanding. That has not prevented provincial governments from reviving it; neither should the mere passage of time prevent Ottawa from invoking disallowance. Or at least threatening to. Ideally, it would commit to doing so in the event that any province were to use the notwithstanding clause. But it could certainly use it to subject the clause to decent limits: to forbid it from being used pre-emptively, for instance, or in ways that put Canada offside of its international treaty obligations.
The nuclear option? So, supposedly, was notwithstanding. No one who desires constitutional peace should want to see either clause invoked. But as the saying has it, if you wish for peace, prepare for war.