Conservative Leader Pierre Poilievre speaks at the National Prayer Breakfast in Ottawa on May 7.Sean Kilpatrick/The Canadian Press
One way or another, we are headed for a constitutional crisis: the only question is when, and on whose terms. Indeed, before this is all over we may be embroiled in multiple crises, pitting the House of Commons against the Senate, the judicial branch against the executive, the federal government against the provinces.
The immediate casus belli is Section 33 of the 1982 Constitution, the notwithstanding clause, and whether a provision plainly intended to be an emergency override, to be used only in the event of an utterly catastrophic ruling by the Supreme Court, should be normalized.
But the broader issue is the Charter, and the doctrine of limited government under the rule of law that it represents. There is an interesting argument to be had about whether, as a matter of principle, governments should be entitled to excuse themselves from constitutional guarantees to which they had earlier committed themselves: that is, whether the notwithstanding clause should exist at all.
But the new breed of notwithstanding enthusiast is not interested in abstruse debates about when or if the clause’s use might be defended. They don’t just want the right to use it, in extraordinary circumstances. They want to make a practice of using it, whenever they feel like it.
They want to use it, not only to avoid having to abide by the Charter on this or that piece of legislation, but to make a broader point: as a raw assertion of executive power. For though they invariably talk in terms of the prerogatives of the legislative branch, of the sacred and ancient rights of Parliament, it is, you will notice, governments who are leading the charge – governments that are not shy about trampling over legislative prerogatives at other times.
It isn’t only the courts they are thumbing their noses at: it is the Charter itself. A government that actually believed in the Charter might nevertheless feel compelled to use the override in extremis. It might argue it had been left no choice, that a rogue court had cut the very purpose out of a vitally necessary law, closing off all possibility of redrafting it to meet the court’s concerns.
Whether or not that has ever actually occurred, that is not what is happening now. The clause is being invoked, not in response to any particular ruling, but in advance, prophylactically, almost as a matter of course. That this is being done with increasing frequency – eight attempts by four provinces in six years – is another clue to what is going on. The taboo on its use has been worn away by repetition.
But it’s part of the Constitution! So it is. But context matters. A single use of the clause might not be worth getting too worked up about. Multiple unprovoked uses in quick succession looks like what it is: an attempt to eviscerate the Charter. Indeed, it is surely no coincidence that the governments most eager to invoke the clause – Quebec, Ontario, Saskatchewan – are also governments that have taken to flouting the Constitution in other ways.
And soon the federal government might be joining them. The Conservative Leader, Pierre Poilievre, has vowed to invoke the clause on certain criminal law matters should his party form a government, as seems increasingly likely. He would be the first prime minister to do so. At which point one has to assume any remaining resistance to its use would crumble.
So we are in a state of apprehended crisis as it is, with the nation’s basic law hanging by a thread. And that latent crisis is about to become apparent. After years of denial, the Charter’s defenders – in politics, in the legal profession, in the academic and activist worlds – have at last grasped how seriously it is threatened, and begun to rally.
The first theatre of conflict may be the Senate. Without much fanfare, Senator Peter Harder gave notice this spring of his intent to put a motion before the Senate asking it to “express the view that it should not adopt any bill that contains a declaration pursuant to section 33 of the Canadian Charter of Rights and Freedoms, commonly known as the ‘notwithstanding clause.’ ”
There had already been much speculation that the Senate, dominated by appointees of the current Prime Minister to a degree unprecedented in our history, might make trouble for an incoming Conservative government, especially one led by Mr. Poilievre. In the notwithstanding clause, they may have found their pretext.
Like Section 33, the Senate is “in the Constitution.” Like Section 33, it should not be, or at least not in its current form, as a body of patronage appointees. Or if we must tolerate it, then its powers should be invoked sparingly, if at all. Again, like Section 33.
A first federal use of notwithstanding would be a calamity, it is true, for all the reasons cited. That does not mean the Senate should presume to prevent it. However wrong a Poilievre government would be to invoke it, it would be the decision of a democratically elected government, supported by a majority of the democratically elected members of the House of Commons. The Senate might have constitutional principle behind it, but it would not have democratic legitimacy. Two wrongs don’t make a right.
And yet it may try. We are so inured to ends-justify-the-means thinking in this country – people have accustomed themselves to defending Senate obstructionism if they happen to agree with its objective – that I can well imagine senators persuading themselves they are on the side of right. Mr. Harder’s motion is intended as a shot across the bow of the Conservatives. It seems unlikely they will be deterred by it. Indeed they may well relish a fight with the unelected Senate.
Between them they may well bring about a head-on collision, with who knows what consequences for parliamentary democracy.
Meanwhile another, even more serious confrontation looms. After a court ruled that Quebec’s infamous Bill 21, which effectively imposes a hiring bar across much of the public service on observant members of religious minorities, was saved from Charter scrutiny by the inclusion of the notwithstanding clause, a coalition of activist groups appealed, arguing this was a misuse of the clause. The Supreme Court is considering whether it will hear the case.
Should the court rule against the province – a similar case is pending in Saskatchewan – and place restrictions on the use of Section 33, we may suppose the political heavens will fall. Or so we are told. I’m old enough to remember similarly dire prophesies in the event the Supreme Court were to rule that Quebec did not have a constitutional right to secede unilaterally from the federation. The court so ruled, the separatist government turned purple with rage, and that was about it.
Certainly the Supreme Court is in a better position to impose limits on the clause than the Senate. The responsibility of judges to interpret the law is universally recognized across the democracies; the Senate, by contrast, is one of very few appointed upper houses. The courts, what is more, are limited to comparing one law to another, guided by precedent and centuries of legal theory. Whereas senators are theoretically empowered to reject a law for any reason they like.
The clause’s very claim to legitimacy – that it is part of the Constitution – also makes it subject to judicial interpretation. Does that mean the courts may interpret it in such a way as to circumscribe its application – to forbid governments from using it pre-emptively, say, that is, in the absence of any adverse judicial ruling, or to require governments to produce satisfactory evidence of its necessity? Possibly.
It’s true that a previous court ruling, in the 1988 case of Ford v. Quebec (Attorney-General), suggested governments had more or less complete leeway to use the clause as they saw fit. But nothing prevents the court from revisiting that decision in light of new facts. The current wave of use/abuse of the clause might qualify, so far as it can be shown to be out of line with the intent of the Constitution’s drafters, or more tenuously with the broader “unwritten principles” that underlie it.
Still, it’s bound to be controversial – massively so. To make a clause that exempts legislation from judicial scrutiny itself subject to judicial scrutiny will strike many as a stretch. Parliamentary supremacists will howl. Quebec nationalists will scream. It may yet be sound law. But is it best to leave it till then – to wait for the crisis to envelop us, that is, rather than to get out in front of it?
There is another body, after all, with the power to do something about the runaway use of the notwithstanding clause, and to defend the Charter from sinking into insignificance. That body is the federal government. Unlike either the Senate or the Supreme Court, its democratic credentials are unassailable, its constitutional authority scarcely less so.
Rather than leave it to the Senate to override the Commons at some future date under some future government, the current government could cause Parliament to pass a law immediately, binding itself against any use of the notwithstanding clause.
Further, it could set down the terms under which it would use the power of disallowance to prevent provinces from using the clause – if not an absolute ban, then imposing certain conditions: no pre-emptive use, or no use for purposes that would shock the conscience, or put us offside of international human-rights covenants.
Of course, all of this could be repealed by a future government. Very well. Is the government looking for an election issue, some line in the sand to divide it from the Conservative opposition, some moral cause to energize its supporters and justify its continued tenure even to those long since repelled by its endless cynicism and opportunism? There’s your issue.
So let’s have it out: an election about the fundamentals. Are governments obliged to stay within certain limits, to abide by basic rules, to live up to promises they put in writing? Or can they rewrite them whenever it suits them, and to hell with human rights? It doesn’t get any more fundamental than that.
The crisis is coming. The only question is when, and on whose terms.
Editor’s note: July 29, 2024: An earlier version of this article incorrectly stated that the Supreme Court will hear a case on the use of the notwithstanding clause as it relates to Bill 21. The Court is considering whether it will hear the case. This version has been corrected.