The notwithstanding clause: a dangerous precedent has been set
Amidst Premier Doug Ford’s extraordinary attempts to refashion Toronto’s city council, one thing is certain: the decision to invoke the rarely used “notwithstanding clause” will leave a lasting mark on Canadian constitutional politics.
The government’s commitment to withdraw the legislation and its invocation of the controversial clause in the wake of Wednesday’s stay by the Ontario Court of Appeal is, to be sure, a win for constitutional integrity. Unfortunately, the premier’s inappropriate use of the notwithstanding clause, and his threats of its future use, have set a dangerous precedent that will not be easily undone.
The notwithstanding clause provides Canada’s legislatures with the drastic power of exempting legislation from certain provisions of the Charter of Rights and Freedoms.
In Canada, therefore, the question of whether legislatures or courts are the final arbiters of our rights is something of a compromise position: the courts hold ultimate authority over certain rights (such as voting rights and the right to enter, remain, or leave Canada), whereas legislatures may trump courts on others (such as freedom of expression and the right to secure against unreasonable search or seizure).
In this respect, Canada’s constitutional model offers a clear departure from the U.S. model of judicial review, in which U.S. courts have the power to issue final and binding decisions on issues within their jurisdiction.
The Canadian model thus engages in a delicate balancing act on the question of whether learned judges or democratically elected legislators are better situated to offer binding decisions on government action affecting our rights and freedoms. It is also a model that attempts to solve, or at least ameliorate, a thorny problem of constitutional law — the problem of bad legal precedents.
Take, for instance, the infamous case of Korematsu v United States. In the face of military and congressional claims regarding the necessity of Japanese internment for the security of the U.S. mainland, a majority of the U.S. Supreme Court odiously sanctioned the use of racially motivated concentration camps against its own citizens.
In his piercing dissent, Justice Jackson remarked that the court was incapable of assessing the military claims. But while a military order would be fleeting, a judicial opinion that rationalized the order as constitutional would embed the principle in U.S. law. The principle, Jackson argued, “then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”
At its best, the notwithstanding clause embodies Jackson’s wisdom and insulates Canadian courts from such concerns. Courts can avoid rationalizing and unduly limiting charter rights and freedoms so they conform to government claims of necessity, knowing that a legislature may nevertheless pass legislation — subject to expiry in five years unless renewed by a later government — notwithstanding certain rights and freedoms.
Conversely, a government may make its case to the people — as the Quebec government did, for instance, when it used the clause to require French-only signs in Quebec — that judicial decisions should bend or be revisited in light of other pressing goals or interpretations.
The Canadian model is, in short, a model that is meant to encourage honesty, clarity, and dialogue with respect to our diverse and sometimes conflicting understandings of our rights and freedoms.
Ford’s first invocation of the notwithstanding clause — an invocation that was legally dubious insofar as it would have to operate retroactively, contrary to an express Supreme Court of Canada holding on the limits of the legislative power — has reflected none of these constitutional commitments.
City council reform went wholly unmentioned in a months-long election campaign. Legal avenues and arguments were largely unpursued and undeveloped before the “nuclear option” was invoked. The apparent goals of the reforms run from the immaterial to the opaque (and probably personal).
And the government has yet to offer a convincing explanation as to why it wants or needs to compromise an ongoing election when it has the alternative of simply waiting until Toronto’s next municipal election before it implements its reforms.
Like a bad legal precedent, an unnecessary and haphazard use of Canada’s notwithstanding clause threatens to lay ready at hand for the next legislature that might abuse it. That is, of course, unless this cynical ploy is known and denounced for what it is — contrary to any reasonable understanding of the notwithstanding clause and its proper role in our Constitution.
Rob De Luca is the director of the Democracy and the Rule of Law Program at the Canadian Civil Liberties Association.
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