Preventing use of the notwithstanding clause is a bad idea — and unnecessary
During the Cold War era, American military strategists thought the Soviet Union would be deterred from dropping a nuclear bomb on North America only if the United States also built up sufficient nuclear weapons capable of annihilating the Soviets.
This idea of mutually assured destruction was an abject failure, paradoxically pushing the world closer to the brink of a nuclear war.
There are similarities — metaphorically at least — to calls to reintroduce a long-dormant power known as “disallowance” into the current debate over Sec. 33, also known as the notwithstanding clause, of the Charter of Rights and Freedoms. A relic of the 1867 Constitution, disallowance allows the federal government to revoke royal assent to provincial laws, rendering them null.
Disallowance is being framed as a trump card in response to Ontario’s Bill 28, the so-called Keeping Students in Class Act, 2022. Bill 28 included the province’s second use of the notwithstanding clause in two years, joining Québec and Saskatchewan, who have each also invoked Sec. 33. The Ford government has since rescinded Bill 28 in order to prevent widespread labour conflict.
The argument is that the threat of disallowance will counter the threat of the notwithstanding clause, and this mutually assured destruction will keep provinces in check.
The only problem is that Canada’s Constitution might just end up as collateral damage.
The origins of Sec. 33
When the terms of the Charter were being drafted, some provincial premiers feared it gave too much power to judges. Believing that legislatures should have the final say on public policy, they insisted on the addition of Sec. 33.
Saskatchewan Premier Allan Blakeney also feared that progressive legislation might be struck down by distorted interpretations of Charter rights that favoured the powerful and privileged. Alberta Premier Peter Lougheed later wrote that it was undemocratic to invoke Sec. 33 before a court had actually ruled on a law’s constitutionality.
Pre-emptive use, he argued, eliminated the essential judicial role in interpreting the Constitution. Lougheed even suggested that a constitutional amendment might be required to confirm that understanding.
Some wonder whether it might be time to get rid of Sec. 33 altogether. But that would be extremely difficult.
Removing Sec. 33 from the Constitution would require, at a minimum, the consent of at least seven provinces, representing 50 per cent of the population. It’s hard to imagine a circumstance in which Québec and probably several other provinces would agree to such a move.
Some constitutional experts believe that using the federal power of disallowance, unused since 1943, is largely now prohibited by convention. They argue its use would severely damage federal-provincial relations and further politicize issues of rights.
A separate option is to seek guidance from the Supreme Court. One way is for the court to hear an appeal.
Québec’s religious symbols law, Bill 21 — currently before the province’s Court of Appeal — presents such an opportunity. There are, though, problems with going that route, including the fact that the case may take years to get to the Supreme Court, the issues it raises are case-specific and the court would be catapulted into a political maelstrom.
How Québec’s Bill 21 could be vanquished by a rarely used Charter provision
Seek Supreme Court reference
In our opinion, the best alternative is for the federal government to seek the Supreme Court’s advice on a series of selected questions, known as a “reference opinion.”
The court has ruled on Sec. 33 only once, in the 1988 case of Ford v. Quebec. In that decision, it gave the clause very broad scope. It indicated that any limits were largely formal in nature: the legislature must expressly state that it operates notwithstanding the Charter right provisions of Secs. 2 and 7-15. It also ruled the clause cannot apply retroactively.
As Ontario’s recent move illustrated, the 1988 Ford decision is functioning about as well as any other 1988 Ford still on the road. At the time, it was understood that politics would be a highly effective constraint against its overuse. Sec. 33 was commonly referred to as the “nuclear option” that would be punished at the ballot box if invoked to deny or avoid constitutionally guaranteed rights.
But times have changed. Governmental musings about using the clause are no longer taboo or even that extraordinary. In 2022, the premiers of Ontario and Québec were each returned with bigger majorities despite using the clause.
Canadians seem comfortable with the view of rights that are guaranteed for them but not necessarily for others. The apparent climb-down by Ontario’s premier is a welcome counterpoint to all of this — yet at the time of this writing, Bill 28 remains in place.
Questions that could be asked of the Supreme Court include:
• When can section 33 be used?
• How does the word “notwithstanding” in Sec. 33 relate to the words “notwithstanding anything” in Sec. 28’s equal rights guarantee?
• How can the clause be amended?
A Supreme Court reference could look beyond the highly polarized reactions to any particular law and get at the heart of the issue: How does Sec. 33 fit with our current constitutional democracy?
Rather than stoking a constitutional crisis through disallowance, this reference would allow the federal government to de-escalate tensions and, most importantly, clarify the scope of the notwithstanding clause.