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Lorne Gunter: Feds' attack on notwithstanding clause an attack on Canadian federation

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It’s too bad federal government lawyers were at the Supreme Court this week arguing against Quebec’s use of the Constitution’s notwithstanding clause in conjunction with that province’s controversial 2019 law, Bill 21. Also known as the secularism law, Bill 21 forbids the wearing of religious symbols at work by any public servant including teachers, nurses, police officers, even clerks.

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It’s an obnoxious law that curtails both freedom of expression and freedom of religion. Had Quebec’s National Assembly not shielded Bill 21 with the notwithstanding clause, the law would be a pretty clear violation of fundamental rights.

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And that’s why federal lawyers chose this week’s Supreme Court case. Their ultimate goal is the weakening or elimination of the Constitution’s Section 33, the notwithstanding clause. And what better way to get rid of Sec. 33 quickly and without the mess of a Constitutional amendment than to have judges use it to overturn a bad law?

Don’t doubt for a second that the Carney government is as determined to have the court overturn the notwithstanding clause or at the very least restrict provinces’ use of it.

It’s important to understand that if the Supreme Court gives in to Ottawa’s demands it will be putting our federation at serious risk. It will be reducing the power of the provinces to resist federal and judicial demands. It will be centralizing even more power in Ottawa’s hands. And it will be placing judges as the undisputed kings and queens of the political and legal hill.

There would be no Charter without the notwithstanding clause. When prime minister Pierre Trudeau was pushing for the repatriation of our Constitution from Britain and for the inclusion of a Charter of Rights and Freedoms, he also included a “judicial review” clause that greatly expanded the ability of judges overturn the will of Parliament or provincial legislatures.

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A group of eight premiers (the Gang of Eight) went to Trudeau during negotiations and said unless he included a provision that permitted provinces to override judges’ rulings, the eight of them (Ontario and New Brunswick were not included) would never go along with the Charter as a whole.

Trudeau relented and that was the birth of the notwithstanding clause.

In the intervening years, the court has used its review powers more often to strike down provincial laws rather than federal ones, a trend that has accelerated in the past decade.

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From 1982 through to 2000, the Supreme Court overturned just 21 per cent of provincial laws brought before the justices. Since then, the rejection rate has increased three-fold to 62 per cent.

If you wonder why provinces have seemingly begun using Sec. 33 more often, the answer is the Court has recently used the Charter to invalidate provincial legislation two-thirds of the time.

Because the clause wasn’t used much during its first 20 years of existence, “progressive” scholars and legal organizations had come to believe there was never any justification for its use.

There is almost no end of academic papers arguing that the authors of our Constitution didn’t really mean what they said they meant when the clause was being debated in 1981 and 1982.

But the meaning couldn’t clearer. Sec. 33 says “Parliament or the legislature of a province may expressly declare … that (an) Act Or a provision thereof shall operate notwithstanding a provision included in … this Charter.”

I’ve read scholarly papers and seen debates in which constitutional “experts” have claimed the premiers who forced notwithstanding on Trudeau senior couldn’t possibly have meant for the clause to give them power to override Charter rights.

Um. I’m pretty sure that’s exactly what they meant.

The notwithstanding clause was meant as a safeguard against judicial overreach. Without it, the provinces would be even more at the mercy of the federal government and the courts.

Confederation would become even more out-of-balance which could only increase regional dissatisfaction with federalism.

The Supremes have to resist the temptation to hollow out notwithstanding.

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