THE NOTWITHSTANDING CLAUSE: THE CHARTER’S HOMAGE TO PARLIAMENTARY DEMOCRACY

Peter H. Russell

In this lively and spirited defence of the notwithstanding clause, the noted constitutional authority Peter H. Russell observes that “the Charter has become an object of worship” that has “thrown the notwithstanding clause (which, believe it or not, is part of the Charter) into bad political odour.” He notes: “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.” Russell adds that “it was indeed a ‘deal-maker.’ Without it, would not have had the support of nine premiers for his patriation package, and we would not have had the Charter in 1982.”

Prenant vigoureusement la défense de la clause dérogatoire, le réputé spécialiste de droit constitutionnel Peter H. Russell observe que « la Charte est devenue l’objet d’un culte » qui a eu pour effet de discréditer politiquement cette disposition. « On l’a pourtant intégrée à la Charte pour une excellente raison, rappelle-t-il : la nécessité d’une supervision parlementaire des décisions d’une magistrature faillible sur les tenants et aboutissants de nos droits et libertés fondamentaux. » De fait, cette disposition a permis une entente majeure puisque sans elle, « Pierre E. Trudeau n’aurait pas obtenu l’appui de neufs premiers ministres à sa proposition de rapatriement, et la Charte n’aurait pas été créée en 1982 ».

t is surely only in Canada, besotted as we are by all tained the notwithstanding clause, the Charter of Rights things constitutional, that something called the “was not worth the paper it is written on.” I “notwithstanding clause” could find a place in the lex- Well, I am here to tell you that Mulroney and his fellow icon of public debate. But it is also only in Canada that a Charter worshippers are wrong, and to plead the case not piece of constitutional furniture known as “the Charter” only for retaining the notwithstanding clause but for occa- (a.k.a. the Canadian Charter of Rights and Freedoms) could sionally having the guts and brains to use it. In doing so, I become a popular icon, deserving of an annual day of cele- know that I face an uphill battle, having just witnessed bration and a virtual blow-out on its 25th birthday. another Conservative prime minister, Stephen Harper, refus- These two peculiar facts about Canada are closely relat- ing to use the notwithstanding clause even though it was ed. The fact that the Charter has become an object of wor- needed to give effect to his legislative objective of restoring ship — a symbol of everything right and good — has the heterosexual marriage monopoly in Canada. thrown the notwithstanding clause (which, believe it or My point is not to defend so-called “traditional mar- not, is part of the Charter) into bad political odour. For riage” but to defend the legitimacy of Parliament debating under this strange sounding clause (even stranger when and deciding how marriage should be defined in Canadian dressed up in its fancy Latin garb as the non obstante clause) law. I believe that it is wrong to deny the equal benefit of our the parliaments of Canada can insulate a piece of legislation laws to because they are gay or lesbian. Like the from Charter challenge for five whole years. God forbid that many Canadian judges who have examined the matter, I can those whom we have elected should have their way with see no justification in a free and democratic society for lim- our beloved Charter! No wonder Brian Mulroney, sniffing iting the rights of gays and lesbians to enjoy the same bene- the populist breeze, once declared that so long as it con- fits that heterosexual Canadians derive from the state’s

POLICY OPTIONS 65 FEBRUARY 2007 Peter H. Russell

recognizing of their marriages. And I government against the rights and free- tution that dared to touch Quebec’s lan- was pleased to find that a majority of doms in the Charter. They accepted guage law. The decision turned out to be our elected representatives in the that Canada’s judiciary would be at the a decisive nail in the coffin of the Meech House of Commons were willing to front line of decision-making in giving Lake Accord, and while that may be the support legislation chang- ing the traditional defini- To defend the notwithstanding clause is not to oppose the tion of marriage. But I Charter. After all, it is part of the Charter. It was included in the would have been a lot hap- Charter for a very good reason: a belief that there should be a pier if our parliamentarians parliamentary check on a fallible judiciary’s decisions on the had been as clear as our courts have been about the metes and bounds of our fundamental rights and freedoms. It reasons for doing so, instead was in the great tradition of the Canadian capacity for of simply repeating Prime compromise on things fundamental. It was a compromise Minister Martin’s mantra between the tradition of parliamentary supremacy and the that it was simply a matter of Charter rights. And I prospect of judicial supremacy. And, in 1981, it was indeed a would have a lot more “deal-maker.” Without it, Pierre Trudeau would not have had respect for Prime Minister the support of nine premiers for his patriation package, and we Harper if he had the guts would not have had the Charter in 1982. and — dare I say it? — the brains to be willing to use the notwith- meaning to the abstract ideals of the one good thing Trudeauites can say standing clause to re-test the will of Charter and applying them, with about the notwithstanding clause, it is Parliament in a meaningful way. authority, to the realities of democratic not exactly an advertisement for it. governance. While most of the time the o defend the notwithstanding clause country would live with the decisions et me add to the detractors’ case by T is not to oppose the Charter. After of judges on the requirements of the L citing another quieter but all, it is part of the Charter. It was includ- Charter, a clause was needed for those nonetheless abusive use of the clause ed in the Charter for a very good reason: exceptional occasions when elected leg- by a Quebec government. This was the a belief that there should be a parliamen- islators, federal, provincial or territorial, blanket use of the notwithstanding tary check on a fallible judiciary’s deci- after careful deliberation, conclude that clause by the PQ government to immu- sions on the metes and bounds of our the way judges have construed, or are nize all new Quebec legislation from fundamental rights and freedoms. It was likely to construe, a Charter right or Charter review. The Supreme Court of in the great tradition of the Canadian freedom is an unreasonable constraint Canada upheld this blanket use of the capacity for compromise on things fun- on democratic power or threatens a legislative override in the same deci- damental. It was a compromise between vital interest of society. sion in which it struck down Quebec’s the tradition of parliamentary supremacy sign law. But it was wrong to do so. The and the prospect of judicial supremacy. will admit that the story of the judges clearly had no appreciation of And, in 1981, it was indeed a “deal- I notwithstanding clause’s use and the notwithstanding clause’s role in maker.” Without it, Pierre Trudeau would non-use through the Charter’s first maintaining parliamentary democracy. not have had the support of nine pre- quarter-century has not been an encour- But these abusive uses of the miers for his patriation package, and we aging story for its fans. Indeed, the most Charter’s legislative override do not justi- would not have had the Charter in 1982. famous — or infamous — use of the leg- fy getting rid of it or not using the clause Premiers like Saskatchewan’s Allan islative override seems to bolster the in an appropriate manner. After all, Blakeney, Alberta’s Peter Lougheed and case of its detractors. I refer to Robert judges too can use the Charter abusively. Manitoba’s Sterling Lyon, who insisted Bourassa’s decision in December 1988, Not so long ago, an Superior on inclusion of the notwithstanding in the heat of the constitutional battle Court judge, Paul Cosgrove, was raked clause in the Charter, were no less civil over the Meech Lake Accord, to invoke over the coals by Ontario’s Court of libertarians than Trudeau. But they had the notwithstanding clause to restore Appeal for making 150 Charter rulings a stronger respect than Trudeau ever Quebec’s French-only sign law, which in a murder trial that were “without evinced for the importance of parlia- had been struck down by the Supreme foundation.” That finding may eventu- mentary democracy to this country’s Court of Canada. The decision was ally lead to Justice Cosgrove’s removal freedom. As civil libertarians they wel- made not through reasoned legislative from the bench. But it will not and comed the opportunity the Charter legislative debate but by Bourassa’s cabi- should not lead to terminating the use of gives citizens to go to court and ask net and caucus listening to mobs in the the Charter by trial judges. Judges, like judges to test the laws and practices of streets howling against any federal insti- legislatures, are fallible.

66 OPTIONS POLITIQUES FÉVRIER 2007 The notwithstanding clause: the Charter’s homage to parliamentary democracy

Policy Options Photo From the Supreme Court to Parliament, from the judiciary to the legislature, who has the last word on the Charter? In theory it is Parliament, through the notwithstanding clause. In practice, as Peter Russell points out, it is the courts, since the federal Parliament has never, and the provinces have only rarely, used it.

I would add that in the long term protect Quebec’s French-only sign law tors to exercise their power to insulate the dubious use of the legislative override gave the clause a bad name in English their laws from Charter-based judicial by Quebec governments has not done Canada. But by now, nearly 20 years review. Most of the judicial-phobia has much harm, and might even have done later, that 1988 episode is a very faded come from academic and political crit- some good. Eventually, when nationalist memory. We must look for deeper and ics on the far right who oppose the tempers cooled down and a United more persistent factors to account for expansion of social equality and reduc- Nations tribunal agreed that Quebec’s how seldom the clause has been used. tion of police powers that judicial deci- prohibition of outdoor English signs was sions in Charter cases have facilitated. excessive, the province adopted the very he benign reason for non-use of But there have been a few Charter compromise the Supreme Court had rec- T the notwithstanding clause is that decisions of our highest court that I ommended — that French be the pre- Canadian judges have done a pretty find very difficult to swallow and that dominant although not exclusive good job in interpreting and applying might well justify use of the notwith- language of outdoor advertising in the Charter. This statement, I know, standing clause. In my view the top Quebec. And subsequent Quebec govern- will shock and offend the anti-activist candidate is the Supreme Court’s deci- ments, PQ and Liberal, have not returned critics of our judiciary. Nonetheless, on sion in the judicial remuneration case. to blanket use of the override. The my reading of the evidence, the Here the Court’s majority found Charter is alive and well and popular in Supreme Court of Canada and the that the Charter right of a person Quebec. It might even be argued that the lower courts generally have been mod- charged with a criminal offence to be availability of the override helped to erate, balanced and reasonable in their tried by “an independent and impartial dampen down nationalist feelings that treatment of the Charter. Yes, there tribunal,” bolstered by a reference in the 1982 constitutional changes had have been exceptions, and I will get to the original Constitution’s preamble to robbed Quebec of its autonomy. these in a minute, but on the whole the Canada having “a Constitution similar There can be no doubt that the judiciary’s interpretation of the Charter in principle to that of the United Bourassa government’s use of the has not been counter-majoritarian and Kingdom,” requires that in setting the Charter’s notwithstanding clause to has not put pressure on elected legisla- pay levels of Canadian judges

POLICY OPTIONS 67 FEBRUARY 2007 Peter H. Russell

legislatures must act on recommenda- and easily overridden provisions of viewing of elected politicians and citi- tions from independent commissions. Quebec’s Charter of Human Rights. But zens 20 years ago, we found that sup- If a legislature decides to pay less than a if in subsequent cases, a majority on the port for legislatures being able to compensation commission recom- Court endorses the broad substantive override courts on Charter issues was mends, the reasonableness of its doing interpretation of fundamental justice in — interestingly — greater among elect- so can be reviewed and over- turned in the courts. In There can be no doubt that the Bourassa government’s use of other words, according to the Charter’s notwithstanding clause to protect Quebec’s French- this very far-fetched reading only sign law gave the clause a bad name in English Canada. But of our constitution, the judges have the final word by now, nearly 20 years later, that 1988 episode is a very faded in deciding how much they memory. We must look for deeper and more persistent factors to should be paid. The six account for how seldom the clause has been used. Supreme Court justices who went along with this decision seemed section 7 of the Charter advanced by ed politicians than among citizens. not a bit disturbed by the conflict of Chief Justice McLachlin in Chaoulli as However, when we moved from the interest inherent in their ruling. I the basis for requiring a major expansion general to the particular and asked believe that most Canadians, if they of private medicine in Canada, I hope about applying the override in specific knew about this decision, would be dis- that a majority of our elected representa- situations, we found shifting partisan turbed by the judges’ conflict of inter- tives will have the guts and the brains to differences in support for using the leg- est, and would support the use of the debate the issue and use the override if islative override. For instance, when we override if it is needed to protect the they conclude that the Supreme Court of asked about using it to maintain a law recent decision of Canada’s parliament Canada’s national health policy is not controlling unions, support for the leg- not to accede fully to the increases in good for the country. islature having the last word rose judicial salaries recommended by the But will they? Writing about the among Conservatives but fell among federal compensation commission. notwithstanding clause some years ago, Liberal, NDP and PQ politicians, and Howard Leeson commented — with vice versa when the law struck down by nother deserving target of the regret — that the notwithstanding the courts was one that aimed at assist- A Charter override was the Supreme clause appeared to be a “paper tiger” ing the poor. Even though public Court’s 1995 decision in RJR-MacDonald that, like the powers of reservation and regard for the Charter as icon has prob- Inc. striking down (by a bare 5-4 major- disallowance, was “available in theory, ably strengthened since we did our ity) federal legislation prohibiting but not used in practice.” It is to be research, I very much doubt that there tobacco advertising and requiring hoped that nothing as strong as the is a settled majority opinion against health warnings on tobacco product convention that governs non-use of using the legislative override. The poli- packaging. The majority found the law reservation and disallowance will devel- tics of any given use will depend on the to be an unreasonable limit on tobacco op around section 33 of the Charter. The policy concerns at issue. manufacturers’ freedom of expression. reason that federal governments should But the real intelligence that is Parliamentarians may well have found not use reservation or disallowance is needed is the constitutional wisdom that the Supreme Court’s decision was respect for our federal system of govern- that led to including the notwith- an unreasonable expansion of freedom ment. The reason that our political lead- standing clause in the Charter — suffi- of expression at the expense of ers should not follow Paul Martin, who cient respect for parliamentary Canadians’ health. Instead, they fol- blurted out in an election debate that he democracy not to let the judiciary lowed the Supreme Court’s hint on how would never use the notwithstanding always have the last word on rights an amended law might meet with its clause, is respect for our parliamentary and freedoms. Let us hope that the approval, and rewrote it, focusing its system of government. next generation of political leaders in advertising ban on lifestyle ads. I believe that maintaining a sensi- Canada will eschew the simplistic Another close call where a Supreme ble attitude to use of the Charter’s thinking of Mulroney and Martin and Court decision in the health field might notwithstanding clause is more a mat- follow the wise statecraft of Blakeney, have merited invoking the notwith- ter of having brains than of having Lougheed and Lyon. standing clause was its 2005 decision in guts. Politicians’ fear that the electorate Chaoulli upholding a challenge to will punish any government that uses Peter Russell is a University Professor Quebec’s ban on private insurance for the notwithstanding clause is not Emeritus at the University of . He services covered by Canada’s public based on any solid empirical evidence is a political scientist who specializes in health plan. However, the majority judg- about public opinion. When three col- judicial, constitutional and Aboriginal ment in this case was based on the soft leagues and I did some in-depth inter- politics. [email protected]

68 OPTIONS POLITIQUES FÉVRIER 2007