The notwithstanding clause – the clause in the Charter that allows a government to legislate in spite of (“notwithstanding”) certain other clauses in the Charter – is one of the great fault lines in Canadian society. Some people believe that it should almost never be invoked, because mere political interests should not be able to overrule the judges. Others see it as a check against the rigidity of a rights-based Constitution. These two camps will never be reconciled.
“We believed that the Charter by itself was a serious threat to the ‘sovereignty of the Parliament,’ ” says William Thorsell, a former editor-in-chief of The Globe and Mail. In 1981, when the great Charter bargain was being brokered, Mr. Thorsell was associate editor of the Edmonton Journal. The notwithstanding clause, he recalls in an e-mail to me, was designed to keep the sovereignty of Parliament alive, and to stave off American-style judicial activism. What it meant was that judges could not strike down democratically enacted laws with impunity. It was a necessary check against judicial overreach.
“Courts are sometimes imperfect or even strange in their judgments under the Charter,” Mr. Thorsell says. In fact, many of us can think of times when we wish the judges had been been overruled. The 1985 Singh decision comes to mind, when, as former Globe columnist Jeffrey Simpson put it, the Supreme Court “gummed up a reasonably effective [refugee determination] system by extending protection under the Charter of Rights and Freedoms to ‘everyone’ who put a foot on Canadian soil.” That decision has plagued the refugee system ever since.
In the other camp are those who think the judges should always reign supreme. These people would rather trust judges than politicians to preserve our rights. To them, the notwithstanding clause is a menace because it ultimately gives the politicians the upper hand. Some argue that the notwithstanding clause is a “loophole” in the Charter. But this is exactly backward. It is an integral part of the Charter. Without it, there would be no Charter. And it was always intended to be used. Even Pierre Trudeau, who only reluctantly accepted the notwithstanding clause because there would have been no Charter deal without it, said he would use it to override the courts if they approved abortion rights.
“The lived experience of having checks on both courts and politicians has worked out pretty well,” says Howard Anglin, who is executive director of the Canadian Constitution Foundation and a former legal adviser to Stephen Harper . “The Ford case should serve as a helpful reminder to the courts that their powers are limited, and that if they wade into the political arena then the political arena can push back,” he tells me in an interview.
People like to think of the notwithstanding clause as a last resort, to be used only in the most serious cases. In fact, it’s unlikely to be used in this way, precisely because the most serious cases are the most politically charged and the political risk is too great. Outside Quebec, the clause has been used in Saskatchewan to resolve a labour dispute and to override a court decision that would force non-Catholic kids out of Catholic schools. No one blinked. It was not, however, used to quash payments for forced sterilization claims in Alberta, as the government had contemplated. Too controversial.
So when is it appropriate to use the clause?
“It should be used when there is a genuine difference of interpretation on rights and where the legislature decides to have the last word in the context of an interpretive dispute with the courts,” says Dwight Newman, a law professor at the University of Saskatchewan. “The other instance is when there is some need to react quickly to a judicial decision,” he tells me.
Which brings us to Doug Ford. The strongest criticism of his use of the notwithstanding clause is that it should be used as a last resort, and this case wasn’t that. This must be set against what Mr. Anglin calls a “‘cynical manipulation of the Charter” by the judge, who struck down the government’s legislation, to change the number of seats on Toronto City Council. “The judge’s ruling was so clearly unsound that if Section 33 isn’t an appropriate constitutional response here, when would it ever be?” Mr. Anglin tweeted. Section 33, he wrote, is a reminder that " if judges want to play politics, the legislature can do it better."
I’m no fan of Doug Ford. I don’t care how many seats there are on Toronto City Council, and I don’t think Mr. Ford should be pushing those people around. But I don’t think judges should be pushing our elected representatives around either – even if their name is Ford. Constitutionally, there’s nothing wrong with what he did. Politically – well that’s another matter. The voters will have the final say on that. Which is as it should be.