The Notwithstanding Clause – Law Professors Get Political

A group of law professors has authored a letter claiming that the Notwithstanding Clause should be used only as a last resort. They are entitled to their opinion but it should be based upon accurate statements.

Their letter includes this paragraph:

The framers of the Constitution included the notwithstanding clause as a compromise to achieve consensus. But, they firmly believed that the notwithstanding clause would only be used in exceptional circumstances. This has indeed been the case since the Charter’s enactment in 1982.

The problem is that there is no evidence in the Charter, and, no evidence contemporary to its adoption, that this was the intention. If the Notwithstanding Clause was intended only for exceptional circumstances the drafters could have signaled that by (among other things):

  • Allowing it to be adopted by super-majority of the legislature only;
  • Inserting language that says the override is valid only if there is a demonstrable need; or,
  • Specifying that it could be used only if exceptional circumstances existed.

They are correct that there is a very limited history of usage of the override. However, the examples they cite do not establish that the clause is to be used only in exceptional circumstances. The Quebec sign case and the Saskatchewan cases do not appear to have any exceptional characteristics. The claim to the requirement for exceptional circumstances appears to rest only on the fact that s. 33 authority is not used very often.

The professors would have done better to explain how this invocation of the Notwithstanding Clause is different from the usage by the Saskatchewan government last year in response to a spring 2017 decision finding that it was unconstitutional to pay for non-Catholic students to attend separate schools. Bill 89 was introduced in November 2017 while the government was appealing the lower court decision and was given Royal Assent on May 30, 2018. On its face it appears that there are only two differences between the two cases:

  1. The lack of a frenzied response to Saskatchewan’s usage of the clause; and,
  2. Premier Ford’s statement that he will not allow the courts to override the government’s mandate from the voters.

If it was their view that the clause should only be used after all appeals had been exhausted it would have been useful if they had objected ten months ago when the Saskatchewan government introduced Bill 89.

The conclusion of the letter centres around their objection to this claim:

…a majority government can not only ignore court rulings, but that it is also free to set aside constitutional rights.

In fact the Charter of Rights and Freedoms, through the notwithstanding clause, says exactly that.

33.(1)    Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.

S. 33(3) provision that the declaration only operates for five years, which means that a successor government would have to re-enact the declaration, is a clear indication that this is a political choice.

Author: Tom Jarmyn