Time for the Notwithstanding Clause to go
In 1982, Canada patriated our Constitution from Britain and added the Canadian Charter of Rights and Freedoms (the Charter). This was Prime Minister Pierre Elliot Trudeau’s crowning achievement. Regretfully, to get the buy-in of all provinces other than Quebec, he had to agree to Section 33 – the Notwithstanding Clause. The Premiers were worried that the courts would have too much power over the elected representatives without such a clause. The clause, if invoked, had to be renewed every five years and I am sure Trudeau never imagined that it would be used. After all, who in a democratic society would want to override basic human rights such as freedom of religion, freedom of expression, freedom from discrimination and so on.
A brief history
It has been 40 years so perhaps we should look at how the clause has been used. Outside of Quebec it has been very rarely used and perhaps never validly.
- 1n 1986, Saskatchewan used the clause in back-to-work legislation. However, the Supreme Court ruled that it’s use was unnecessary since the legislation did NOT violate the Charter.
- In 2000, it was used by Alberta against same-sex marriage but marriage falls within Federal jurisdiction and so the law was invalid.
- In 2017, Saskatchewan used the clause to override a lower court ruling which would have removed provincial funding for non-Catholic students in Catholic schools. It is questionable whether that legislation violated the Charter and the ruling was never appealed.
- In 2018, Ontario passed a law to reduce the size of the Toronto municipal council and invoked the clause. However, the Court of Appeal ruled that the use was unnecessary since no Charter rights were violated.
- This year, Ontario tabled a Bill with the clause to ban education workers from striking. After blowback, the bill was withdrawn.
Until 2019, Quebec used the clause only once, in 1988, to restrict the use of the English language on signage and in advertising. This was a violation of the Charter protection of Freedom of Expression. After the Supreme Court ruled against the legislation, Quebec passed a weaker law that conformed with what the Supreme Court suggested would be acceptable.
Now the CAQ government in Quebec has passed Bills 21 and 96 with the clause invoked in a blanket and pre-emptive fashion. These laws have been challenged and eventually the Supreme Court will rule on them.
Since the clause has no value, why are we keeping it?
One thing is clear. The Premiers’ concerns in 1982 that led to the clause have proven to be unfounded. So why are we keeping such an odious clause in our Constitution. No other Liberal Democracy has such a clause. It violates the UN Declaration of Universal Human Rights to which Canada is a signatory and whose first draft was written by John Peters Humphrey, a Canadian (and Hampstead resident).
Keeping this clause in our Charter weakens Canada’s moral authority when we criticize the human rights records of other countries. How can Canadians be proud of our country and its constitution when it allows the violation of all our most fundamental human rights by the passage of discriminatory legislation with no more than a simple majority?
A democracy without a constitution that protects minorities is subject to tyranny by the majority. In the past such countries have seen populist leaders become actual or virtual dictators. To quote a famous poem:
First they came for the socialists, and I did not speak out—because I was not a socialist.
Then they came for the trade unionists, and I did not speak out—because I was not a trade unionist.
Then they came for the Jews, and I did not speak out—because I was not a Jew.
Then they came for me—and there was no one left to speak for me.
—Martin Niemöller
What needs to be done
Would it be so hard to modify our Charter to remove the clause? Actually, no. It only takes agreement by the Federal government and 7 provinces representing 50% of the population. However, the Federal leaders think they need Quebec votes and are afraid of a Quebec backlash. Nevertheless, a principled leader could get overwhelming support from everyone outside Quebec and probably a sizeable number of Quebecers as well. Pierre Elliot Trudeau stood up to Quebec literally at the St. Jean Baptiste Day parade in 1968 when bottles were hurled at the reviewing stand and all the dignitaries scattered except for one, Prime Minister Trudeau. The election was the next day and he won 54 out of 76 seats in Quebec and a very solid majority across Canada following two minority governments under Lester Pearson.
Our current Prime Minister, Pierre Elliott’s son, Justin Trudeau, had this to say about Ontario’s use of the notwithstanding clause. “The suspension of people’s rights is something that you should only do in the most exceptional circumstances, and I really hope that all politicians call out the overuse of the notwithstanding clause to suspend people’s rights and freedoms.”
Those are wonderful words but they were said about Ontario, not Quebec whose Bills 21 and 96 are far worse that Ontario’s proposed Bill.
It is time for a new leader as principled and courageous as Pierre Elliot Trudeau. It would be poetic justice if the son got rid of the stain on his father’s shining constitution by standing up to Quebec, as his father did, and advocating for the removal of the notwithstanding clause from the Charter.
2 Comments
Yes, but whom? We need someone with a spine of steel… also Legault has a strong following and support from the people ( excepting Montréal) and I don’t think Trudeau Fils would come out a winner in Quebec
I suspect that you are right that Trudeau Fils has no backbone but to be fair have we heard the leaders of the Conservatives or NDP advocate for action on this. At the end of the day it is the voters who must contact their MPs and express their views.
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Dr. Bill Steinberg
Dr. Steinberg has a BSc from McGill University, a PhD in Psychology from Northwestern University, and was a professor at Concordia University. He was Mayor of the Town of Hampstead for 16 years and led the demerger battle. He was was awarded the Queen Elizabeth Diamond Jubilee Medal and is currently President of the Cochlear Implant Recipients Association.