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, Pierre Trudeau 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 Canadians 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 Ontario 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.