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

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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

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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. Weiler’s arguments are between competing rights. process of public discussion…For me, important both for Canadian political Janet L. Hiebert and Peter W. the legislative override clause is a way and legal history and for the larger Hogg have defended the override not of countering the flight from demo- issue, put well by Jeremy Waldron, as a threat to rights, but as part of an cratic politics.” This scholarly calm, that since disagreement on matters of overall system that has promoted compared to the pyrotechnics of the principle are the rule in law and poli- rights by creating a dialogue between political debates over section 33, is tics, how are such disputes best adjudi- courts and legislatures. Hiebert makes best conveyed by Howard Leeson, a cated? Does Canada’s Charter the valid point that “before the experience over the past 25 Charter was adopted in 1982, Janet L. Hiebert and Peter W. Hogg years fulfill Weiler’s hopes human rights were not often a have defended the override not as a when he was the first scholar to focal point for Canadian polit- threat to rights, but as part of an argue for the override, not only ical debates.” The Charter, as a necessary compromise to she argues, has introduced a overall system that has promoted settle a great constitutional dis- new framework “for facilitat- rights by creating a dialogue pute, but as an innovation that ing conversations between between courts and legislatures. had merit in itself? Parliament and courts about Hiebert makes the valid point that In the 1979 Killam the importance that should be Lecture, Weiler advocated a attached to rights claims and “before the Charter was adopted in constitutional bill of rights the justifications of state 1982, human rights were not often with a “non obstante clause.” actions that conflict with pro- a focal point for Canadian political This lecture was printed in a tected rights.” debates.” The Charter, she argues, 1980 article in the Dalhousie To improve that conversa- Review. Weiler argued: tion, Hiebert has suggested a has introduced a new framework We should entrench our parliamentary Charter com- “for facilitating conversations fundamental rights in the mittee to review proposed leg- between Parliament and courts Canadian Constitution…But islation to assess compatibility about the importance that should we should include in the with the Charter and improve Constitutional Bill of Rights the “conversation.” Peter W. be attached to rights claims and the the kind of non obstante Hogg and Allison Bushell, in a justifications of state actions that provision which would allow famous 1997 article, surveyed conflict with protected rights.” Parliament to enact (or re- 65 cases where legislation was enact) a statute which would invalidated for a breach of the participant in the climactic negotia- then be legally valid irrespective Charter and found that in two-thirds tions over the Charter in 1980-81, of a judicial holding that is of them, the “competent legislative who 20 years after the Charter’s debut incompatible with the Bill of body amended the impugned law.” wrote that “section 33 now appears to Rights…In typical Canadian This “Charter dialogue,” therefore, be a paper tiger.” Far from being the fashion, I propose a compro- rarely blocks legislative objectives but dagger feared by Forsey et al., Leeson mise, between the British ver- helps influence the design of imple- sees it as “at best a temporary stopgap sion of full-fledged menting legislation. to enable more dialogue. But it should parliamentary sovereignty and Defenders of the Canadian over- not be abandoned.” the American version of full- ride also cite, approvingly, Jeremy fledged judicial authority over Waldron’s argument that political anadians, therefore, have been constitutional matters. participation is “the right of rights,” C debating the worth of the over- and therefore, a legislative override, ride for the past 25 years. But many of he concept of a notwithstanding which is eventually accountable to the arguments, both from participants T clause was not new. As Weiler

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eral paper The Constitution of the People of Canada. In the extended constitutional discussions of the Charter between the federal govern- ment and the provinces in the 1970s, officials occasionally referred to the concept (notably in the February 1979 meeting of first ministers). The Task Force on Canadian Unity (the Pepin-Robarts report) in January 1979 suggested “including a clause in the constitution which would permit a legislature to circumvent a right (and incurring the odium of so doing), by expressly excepting the statute from respecting that right.”

o the possibility of a non obstante S clause for legislatures was certain- ly in the air, though my recollection is that far more time was devoted to examining a limitation clause where the judiciary itself could balance competing rights or needs, rather than a legislature trumping a court. But Weiler’s 1980 article was the first that I can recall making a positive case for an override rather than see- ing it as a necessary but regretful compromise to gain provincial sup- port. Weiler supported a bill of rights because “there must be some moral limits on the actions of any govern- ment, even a democratic govern- ment.” He also chided the Supreme Court, which “has been anything but an over-zealous defender of Canadian civil liberties,” and hoped that a con- stitutional bill of rights would give Canadian judges the confidence to become more activist. But his advoca- cy for a non obstante clause as part of Montreal Gazette archives any Charter was not to settle for “half René Lévesque’s acceptance of Pierre Trudeau’s offer to hold a referendum on his patria- a loaf rather than none at all” (the tion package blew up the Gang of Eight dissenting provinces at the November 1981 First Federal government rationale). He Ministers’ Conference, which resulted in agreement by nine provinces to the federal argued for the proposal on its intrin- Charter of Rights, and Ottawa’s agreement to a provincial amending formula and the notwithstanding clause. sic merits because “constitutionality, like law, is also a matter of degree.” himself noted, the 1960 Canadian Bill to an uncomprehending premier as Judges should be emboldened but of Rights had a notwithstanding the new Conservative government “once the judges have issued their clause, as did various provincial bills was about to introduce the Alberta verdict, I would leave Parliament, not of rights. Peter Lougheed has an Bill of Rights. Anne Bayefsky notes the Supreme Court of Canada, with amusing story of his attorney general, that the first notwithstanding clause the final say. If Parliament wants to Merv Leitch, explaining in 1971 what in a draft of a constitutional bill of overturn a judicial ruling, it will have exactly a notwithstanding clause was rights is to be found in the 1969 fed- to face the issue squarely and commit

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itself on the merits. There would be that would eventually form the basis of ity that they might accept a Charter considerable political hurdles to any the deal — a straight-up exchange with with an override that preserved parlia- government choosing to take that the federal government accepting the mentary supremacy. (Saskatchewan step.” Legislative oversight of judicial provinces’ amending formula in had also raised the override option review in Canada, of course, includes exchange for the provinces accepting during the 1980 summer negotiations both the federal Parliament and the Charter of Rights. between officials and ministers prior the provinces. Though a defender of the override, On Wednesday, November 4, Prime Minister Trudeau played Paul Weiler has also noted that if the United States our third card by raising the possibility of a national had had a similar mixing referendum to settle the debate once and for all. He was of judicial review and leg- entirely serious that this might be the way to settle the great islative oversight, on the debate. This tactic broke up the unity of the “Gang of Eight” Canadian model, after Brown v. Board of Education dissenting provinces by enticing René Lévesque to accept an in 1954, Mississippi and Ottawa-Quebec entente, to let the matter be decided by the Alabama could have used a people. Trudeau had instructed me weeks before the state override to prevent conference to start planning for a referendum and/or election integration of the schools. So the virtues outlined by on the campaign issue of the Charter of Rights. Facing, on Weiler for the Canadian that Wednesday afternoon, the unhappy prospect of invention of the override campaigning against the Charter of Rights in their home may not be for everyone. provinces, the seven remaining premiers in the Gang of Eight Samuel V. LaSelva writes, “That the Charter contains urgently began to contemplate a negotiated compromise. a notwithstanding clause The non obstante clause option then became crucial. may be due, then, in no small part to Professor Weiler.” On Wednesday, November 4, to the First Ministers’ Conference of Whether the provincial premiers or Prime Minister Trudeau played our that year.) In a kitchen pantry off the their officials were reading academic third card by raising the possibility of main theatre, Jean Chrétien, Roy articles, I doubt, but Weiler also spoke a national referendum to settle the Romanow and Roy McMurtry put to several of the players in the great debate once and for all. He was entire- together the pieces of the compro- constitutional game. The Ontario dele- ly serious that this might be the way to mise. They started with the Davis idea gation benefited from his advice and I settle the great debate. This tactic of a swap — a federal Charter in can testify that Roy McMurtry was cer- broke up the unity of the “Gang of exchange for the provincial amending tainly vocal in urging a non obstante Eight” dissenting provinces by entic- formula. But there would be addition- clause on his reluctant federal allies. ing René Lévesque to accept an al critical nuances both to gain the Twenty-five years on, it seems in retro- Ottawa-Quebec entente, to let the necessary buy-in from the majority of spect that a constitutional agreement matter be decided by the people. the provinces and to persuade Prime was inevitable. I can assure you that it Trudeau had instructed me weeks Minister Trudeau to accept a negotiat- did not seem inevitable at the time. before the conference to start planning ed compromise rather than taking his for a referendum and/or election on full Charter package to the people in a he federal plan, agreed to jointly the campaign issue of the Charter of referendum. The provincial amending T by Ontario and New Brunswick, Rights. Facing, on that Wednesday formula would be accepted but with- was to open the discussions by showing afternoon, the unhappy prospect of out fiscal compensation for non-par- signs of flexibility: on the opening day, campaigning against the Charter of ticipating provinces. The Charter of therefore, Monday, November 2, 1981, Rights in their home provinces, the Rights would be accepted but with an Premier Hatfield floated ideas about seven remaining premiers in the Gang over-ride clause that would retain leg- enacting parts of the Charter immedi- of Eight urgently began to contem- islative supremacy. Chrétien obtained ately but postponing some of the more plate a negotiated compromise. The a further compromise within this controversial sections (equality rights). non obstante clause option then compromise: the override would not This was the first sign that Trudeau became crucial. apply to the Charter sections on lan- might be prepared to compromise on At different times during the guage, education and mobility rights the full Charter. On Tuesday, November negotiations both Peter Lougheed and since language rights were the core of 3, Premier Davis put forward the idea Allan Blakeney had raised the possibil- Trudeau’s “Just Society.” Judicial

62 OPTIONS POLITIQUES MARS 2007 The notwithstanding clause: sword of Damocles or paper tiger? review reigns supreme over parts of of ministers and officials were still formula was no longer part of the pack- the Charter, legislative supremacy hawkish on going to the people, rather age, even more regret that Canadians over the rest: a philosophical muddle than accepting the emerging compro- would not be directly participating in — why are language rights more mise. Trudeau reflected in his Memoirs: bringing home the Constitution, con- important than democratic rights — “I was definitely leaning on the side of cern about Quebec losing its veto but a muddle that could attract sup- the hardliners. The notwithstanding (which Lévesque had given up in accepting the Gang of Eight There was no euphoria in the Prime Minister’s Office on amending formula) and a November 5, 1981. Relief that winning acceptance from the nagging sense of loss that British Parliament was no longer an issue, regret that the the Charter was not whole referendum provision in the federal amending formula was no because legislative majori- ties could still trump indi- longer part of the package, even more regret that Canadians vidual rights. would not be directly participating in bringing home the In April 1982, at a cele- Constitution, concern about Quebec losing its veto (which bration with the Queen Levesque had given up in accepting the Gang of Eight before the signing of the new Constitution, Trudeau saw amending formula), and a nagging sense of loss that the his old friend and intellectu- Charter was not whole because legislative majorities could still al patron, Frank Scott. It was trump individual rights. Scott in the 1950s who had stimulated Trudeau’s interest port from both sides. This was the deal clause violated my sense of justice: it in entrenching a Bill of Rights. Trudeau that Bill Davis and Jean Chrétien seemed wrong that any province could said to the Queen, “Madam, if we have a pressed upon Trudeau. decide to suspend any part of the char- Charter of Rights in this country, we owe Jean Chrétien was indefatigable ter, even if the suspension was tempo- it to this one man…Everything I learned in promoting the deal that he had rary.” Trudeau left the meeting to take about the Constitution, I learned from brokered and his job was to persuade a phone call from Bill Davis, and Jean this man.” But Frank Scott felt that too Trudeau. It was a near-run thing. A Chrétien lectured his colleagues much been given away with the year after Trudeau’s 1984 retirement, (including me as I had been forthright notwithstanding clause. As Scott retold I wrote about the colliding concep- in advocating a referendum) that “I the story, he would end with the dis- tions of Canada held by the various won’t put on my running shoes for claimer that “he didn’t learn enough!” leaders in the 1981 showdown. For another referendum.” Davis too urged The essence of entrenched bills of Pierre Trudeau “the Charter was the Trudeau to accept the compromise. rights is that a society makes a pre- Ark of the Covenant in the federal That evening, the Prime Minister was commitment to protecting minority vision.” The Prime Minister, much of non-committal but he encouraged rights by putting in place judicial bar- the cabinet and most of the Liberal Chrétien to keep working to get a riers to prevent emotions from getting caucus were heavily invested in the majority of the premiers. By the morn- out of control. Like Odysseus lashing Charter fight. The initial Charter ing of November 5, Chrétien had the himself to the mast so he cannot be draft had also been greatly improved support of eight provinces, and as we wooed by the songs of the sirens, soci- during the 1980-81 parliamentary reconvened for breakfast, Trudeau told eties that enact charters of rights lash hearings and no one wanted to let him over the phone, “Jean, if you were themselves to the mast. But the down the public who had begun to here, I would hug you.” In the final notwithstanding clause is like giving see the bill as a “people’s charter.” At negotiations on November 5, Trudeau Odysseus a dagger so he can cut his a cabinet meeting held Tuesday said he was prepared to accept the ropes when the sirens sing loudest. night, therefore, most of the cabinet override for sections 2 and 7-15, but Better to keep the dagger. had supported the option of going to only if the provinces would agree to a the people on the complete federal five-year sunset clause. Lougheed said Thomas S. Axworthy is chair of the package, rather than a compromise. “yes” and the deal was done. Centre for the Study of Democracy, Chrétien could tell his provincial Queen’s University. He was principal sec- interlocutors in all honesty on here was no euphoria in the Prime retary to Prime Minister Trudeau at the Wednesday that if they had no give, T Minister’s Office on November 5, time of the patriation of the Constitution the country would face a referendum. 1981. Relief that winning acceptance with the entrenched Charter of Rights On the evening of November 4, an from the British Parliament was no and Freedoms in 1982. Adapted from a even more crucial meeting took place longer an issue, regret that the referen- paper presented at Harvard University, at 24 Sussex. There, a smaller meeting dum provision in the federal amending November 2006.

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