THE NOTWITHSTANDING CLAUSE: SWORD OF DAMOCLES OR PAPER TIGER? Thomas S. Axworthy Twenty-five years after its inclusion in the Charter of Rights, the notwithstanding clause has never been invoked by the federal government and risks, like the power of disallowance, falling into disuse. Tom Axworthy, who was principal secretary to Prime Minister Trudeau, acknowledges that it was “one of the key components of the 1981 political compromise that led to the Charter and amended the Constitution,” and writes that it should be retained, rather “like giving Odysseus a dagger so he can cut his ropes when the sirens sing loudest. Better to keep the dagger.” Axworthy also takes us behind the scenes at the First Ministers’ Conference of November 1981, and describes the making of the deal that became an historic Canadian compromise. Vingt-cinq ans après son adoption, la clause dérogatoire n’a jamais été invoquée par le gouvernement fédéral et risque, à l’exemple du droit de désaveu, de tomber en désuétude. Malgré tout, estime Tom Axworthy, qui était à l’époque secrétaire principal de Pierre Elliott Trudeau, on doit maintenir cette disposition qui constitue l’un des « éléments clés du compromis politique ayant mené à l’adoption de la Charte et à la révision de la Constitution ». Un peu comme « on offrirait à Ulysse une dague pour trancher ses liens et échapper aux Sirènes. Mieux vaut pour lui disposer de cette dague ». L’auteur nous transporte aussi dans les coulisses de la Conférence des premiers ministres de novembre 1981 et décrit comment fut négociée l’entente qui allait sceller un compromis historique. n the January 2006 leaders’ debate, Prime Minister Paul proclaiming that “citizen rights must always trump legisla- Martin stunned the country with his pledge that if re- tive rights and the courts are the best protection of civil lib- I elected, the Liberal Party’s first order of business would erties.” It reaffirmed Paul Martin’s position that “the Liberal be to remove from the federal Parliament the ability to use Party work toward the abolition of the notwithstanding section 33, the “notwithstanding clause,” to override court clause in the Charter.” Twenty-five years after the introduc- rulings on Canada’s Charter of Rights and Freedoms. Martin tion of the Charter, controversy still surrounds section 33. described section 33 as “a hammer that can only be used to pound away at the Charter and claw back any one of a num- ivisive at its birth, yet one of the key components of ber of individual rights.” Martin’s pledge, coming after a D the 1981 political compromise that led to the Charter long and acrimonious national debate over same-sex mar- and amended the Constitution, section 33 is, writes Brian riage in which many had argued for use of the notwith- Slattery, “perhaps the most fundamental distinguishing standing clause to overturn the Supreme Court’s ruling that feature of the Canadian Charter.” And if not the most fun- gay couples had the right to marry, remained moot since he damental, it is certainly the best-known, the one feature of lost the election. But debate over the notwithstanding the Charter that has engaged public debate beyond judicial clause rumbles on: in June 2006, Preston Manning and Mike factums and legal scholarship. Robert Bourassa’s use of the Harris, two of Canada’s best-known Conservatives, released notwithstanding clause in 1988 in Bill 178, to overturn the a study on federalism for the Fraser Institute that recom- Supreme Court’s decision that prohibition of the use of lan- mended rehabilitating the use of section 33 and, in order to guages other than French was an unreasonable limitation give its use more legitimacy, employing provincial referen- on the freedom of expression guaranteed by the Charter, dums to ask the people “to choose between the Court’s pol- was perhaps the single most important act in eroding sup- icy and the government’s policy.” Not to be outdone, the port for the proposed Meech Lake package of amendments Liberal Party’s Renewal Commission issued its own report to the Constitution. In 1985, Herbert Marx, then the 58 OPTIONS POLITIQUES MARS 2007 The notwithstanding clause: sword of Damocles or paper tiger? Liberal opposition justice critic in does apply to a very large num- mean placing individual rights Quebec, stated that “the danger of ber of the rights and freedoms and freedoms beyond the reach having a ‘notwithstanding clause’ will otherwise guaranteed… of ordinary legislatures by put- become evident when we need protec- Clearly, then, it gives feder- ting them in a Constitution tion most — we will not have it.” So it al and provincial legislators whose provisions could only be proved in 1988 when Marx was one of very wide powers to do as they avoided by Constitutional three Quebec anglophone cabinet see fit in limiting or denying amendment…In Canada we ministers to resign over Bourassa’s use those rights and freedoms. The have a Constitutional Charter of the notwithstanding clause. Charter would not have protect- of Rights, but not an Clifford Lincoln, Bourassa’s minister ed the Japanese-Canadians who entrenched one. of the environment, shot to national were forcibly interned during Peter Russell makes a similar prominence with his eloquent resig- World War II. Nor will it pro- point, though he draws a different nation speech: tect anyone advocating against conclusion: “Perhaps only Canada, In my belief, rights are rights an unpopular cause today. still teetering uncertainly between are rights. There is no such Perhaps none of our legis- British and American models of gov- thing as inside rights and out- latures will use the notwith- ernment, could come up with legisla- side rights. No such thing as standing clause again. But it is tive review of judicial review.” Russell rights for the tall and rights for there. And if this dagger is believes this is a strength because it the short. No such thing as flung, the courts will be as combines the strengths of both legisla- rights for the front and rights powerless to protect our rights tures and the judiciary: “Weird as such for the back, or rights for the as they were before there was a a system may seem to the purists on East or rights for the West. Charter of Rights. both sides, it just might help us wring Rights are rights and will the best that can be hoped for from a always be rights. There are no wenty years later, this time over Charter of Rights without totally aban- partial rights. Rights are funda- T the threat that a legislature might doning our reliance on the processes mental rights. use the notwithstanding clause to of parliamentary government to settle overturn the Supreme Court’s ruling difficult issues of social policy.” esperate to salvage the Meech on same-sex marriage, Paul Martin Defence of the override as a desir- D Lake Accord, Prime Minister invoked the same kind of warnings able balance between judicial activism Brian Mulroney attempted to deflect that Mulroney and Forsey had made and majoritarian excess represents a criticism of Bourassa by attacking sec- over language. consensus among Canadian legal tion 33 and those leaders who had initially agreed to Defence of the override as a desirable balance between its inclusion. Mulroney judicial activism and majoritarian excess represents a described section 33 as “that major fatal flaw of consensus among Canadian legal scholars. Lorraine Weinrib, 1981, which reduces your for example, declares that “our constitutionalism is a seamless individual rights and web, made up of constitutional text, convention and judicial mine.” Any constitution, pronouncement. The override can be understood as he concluded, “that does not protect the inalienable intensifying and strengthening its patterns of respect for and imprescriptible individ- democracy, difference and individual dignity.” ual rights of individual Canadians is not worth the paper it is But if Canada’s debates over lan- scholars. Lorraine Weinrib, for exam- written on.” guage and sexual preference have led ple, declares that “our constitutional- Eugene Forsey, perhaps Canada’s many — especially politicians — to ism is a seamless web, made up of foremost constitutional authority, also attack section 33 robustly, Canada’s constitutional text, convention and was driven by Bourassa’s action to legal scholars paint a very different pic- judicial pronouncement. The override weigh in against section 33: ture. Some, like Anne F. Bayefsky, make can be understood as intensifying and The notwithstanding clause is a the stark point that because of section strengthening its patterns of respect dagger pointed at the heart of 33, the Charter of Rights and Freedoms for democracy, difference and individ- our fundamental freedoms, and is not entrenched. She writes: ual dignity.” Christopher Manfredi, it should be abolished. “Entrenchment” is a term now Dean of Arts at McGill, writes: Although it does not apply to which in the long Canadian The principal issue in an over- the whole Charter of Rights, it debate was consistently used to whelming majority of Charter POLICY OPTIONS 59 MARCH 2007 Thomas S. Axworthy cases is not legislative abroga- the people, is more legitimate in a in the 1980-81 negotiations and by tion of rights, but the constitu- democracy than the rulings of a scholars ever since, were enunciated tional validity of a shifting handful of judges. either before or just after the Charter’s balance in the relative impor- birth by Paul Weiler, of the Harvard tance attached to competing or Peter Russell, “the attempt to Law School. In three seminal articles, rights… Section 33 does not F remove rights issues, irretrievably, Weiler developed a rationale both for a authorize legislatures to override from the arena of popular politics is to Charter of Rights (at the time, a con- rights per se, but to override the give up on what democratic politics at troversial innovation in Canada’s judi- judicial interpretation of what its best should be — the resolution of cial system) and for a legislative constitutes a reasonable balance questions of political justice through a override.