From 2023:
Obstruction of the Justices: Why We Need the Notwithstanding Clause More than Ever
When Ontario Premier Doug Ford invoked the Charter’s “notwithstanding” clause in back-to-work legislation last fall, he became just the latest political leader to be pilloried for using it. Loudly condemned as an instrument of oppression, the notwithstanding clause has been under attack for decades as a political expedient that should never be used. But as Gordon Lee argues, the clause was a carefully considered addition to the Charter intended to safeguard democratic legislatures from the whims of activist judges. And with a Supreme Court that continues to invent rights and expand its power, we are going to need it more and more.
Few issues today arouse more anger and fear-mongering in Canada than the “notwithstanding” clause of the Canadian Charter of Rights and Freedoms. Many among our governing elites, academia and well-funded activist groups have declared the clause nothing less than a grave danger to Canadian society. The Canadian Civil Liberties Association, for example, has said the clause is “dangerous to every person regardless of their political beliefs,” while Nathalie Des Rosiers, a former law school dean and the current Principal of Massey College at the University of Toronto, declared its use “lethal to the protection of all rights.” Liberal MP Adam van Koeverden has called the clause undemocratic despite the fact that, when it’s invoked, it is done by elected representatives to override a decision made by unelected judges.
Prime Minister Justin Trudeau has been equally strident, saying “all Canadians” should “be very concerned about” the use of the notwithstanding clause, while NDP MP Matthew Green described Ontario Premier Doug Ford’s use of the clause to keep schools open as “the trampling of constitutional rights,” seemingly unaware that the notwithstanding clause is itself a constitutional right given to Parliament and provincial legislatures, enshrined in Section 33 of the Charter.
Prominent among the arguments advanced – and seemingly persuasive – is that the use of the notwithstanding clause runs contrary to the intent of those who drafted and signed the Charter in 1982. A group of law professors argued in 2018, for example, that the infrequent use of the clause was “precisely what the framers of the Constitution had hoped and predicted.” Many critics believe it was merely a regrettable political expediency adopted to assure passage of the Charter – which had been subject to long and contentious negotiations – but only to be used in truly rare and exceptional cases.
There are, however, several problems with this argument. First, as constitutional law scholar Geoff Sigalet has argued, several framers did not hold such expectations. Many of those involved have been clear that the clause was meant precisely to give elected officials the final say on legislation and was seen as a necessary addition. Even then, the notwithstanding clause has been used very rarely. Over more than 40 years, it’s been used just 21 times by the federal government and all provinces combined. Given the thousands of laws and regulations passed in that period, this should hardly raise alarm bells. Finally, those who appeal to the framers’ alleged intent ignore the other side of the story: that the Supreme Court of Canada has in several key decisions involving the Charter chosen to ignore or even denigrate the framers’ intent.
There are many examples of judicial activism where judges have gone beyond what the Constitution clearly states – inventing rights unknown or unimagined by those who drafted and signed the document. Judges becoming de-facto legislators would seem to pose a danger to Canada’s form of democracy. With no other way to redirect Canada’s top court and its unelected judges, the notwithstanding clause has become necessary to protect Canadians from the Court’s increasingly policy-driven if not downright arbitrary decisions.
The Court Invents the Right to Strike
One recent example of judicial activism is the Supreme Court’s interpretation of Section 2(d) of the Charter, which states that everyone has the freedom of association. In 1987, the court ruled that s. 2(d) did not give unions a constitutional right to collective bargaining or to strike. This understanding stood for many years.
In 2007, however, the Court suddenly changed its mind and invented a right under s. 2(d) to engage in collective bargaining. Eight years later, the Court went much further. At the time, Saskatchewan was suffering through a lengthy and debilitating strike by essential workers. Nurses, snow-plow operators and prison workers walked off the job. The strike meant surgeries cancelled, those near death denied admission to palliative care, and children’s health care services significantly reduced. To ensure this would never happen again, the provincial government passed a law to prevent essential workers from striking.
A group of unions challenged the law, and despite the strike’s effects and its own prior rulings to the contrary, in its 2015 Saskatchewan Federation of Labour decision the Supreme Court struck down the law by invoking a newly-invented constitutional right to strike. Justice Rosalie Abella, whom one prominent scholar has called “Canada’s foremost activist judge,” wrote the opinion, declaring confidently that “[i]t seems to me to be the time to give this conclusion constitutional benediction.” While undoubtedly self-assured in tone, Abella’s use of the word “benediction” – a religious term referring to a pastor delivering God’s blessing upon grateful congregants – presents a disturbing view of how Canada’s most powerful judges see their relationship to the nation’s citizens.
The Saskatchewan Federation of Labour decision has given immense power to unions, particularly those in the public sector. When education workers in Ontario planned to walk off the job last fall, which would have closed thousands of schools indefinitely, they did so with the Supreme Court’s blessing. When Ontario’s government invoked the notwithstanding clause in back-to-work legislation (later revoked), it was pilloried in the media for doing so. Of course, there would be no need for the clause if the Court had not suddenly invented a constitutional right to strike, which the Charter’s framers never envisioned.
Ignore the Original Meaning
Section 2(d) is not the only Charter provision whose original meaning the Supreme Court has ignored. The most glaring example is the Court’s interpretation of s. 7, which states that “everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”
According to several key drafters of the Charter, s. 7 applied only to procedural rights and did not give courts authority to invent new substantive rights. Procedural rights refer to basic rights like a fair hearing or trial – rights based on the legal process, in other words. Substantive rights are much broader and more amorphous. They are essentially practices to which a court has decided to extend constitutional protection. Assisted suicide is one prominent example, a practice which has nothing to do with ensuring a fair procedure before a court or tribunal, but which the Supreme Court declared was a substantive right under s. 7 in its 2015 Carter decision.
Three people who played key roles in drafting the Charter all testified that s. 7 did not give courts the power to invent new substantive rights: Jean Chrétien, the then federal minister of justice; Barry Strayer, assistant deputy minister; and Roger Tassé, deputy minister. But in 1985, the Court dismissed this testimony by simply declaring that the drafters’ statements about the Charter’s meaning deserved only “minimal weight.” The premiers who actually signed the Charter, which was not even four years old at the time, were all still alive and presumably could have been consulted. Nevertheless, the Supreme Court ruled in the 1985 BC Motor Vehicle Reference that s. 7 entitled courts to invent new substantive rights.
The Court also declared it would ignore s. 7’s original meaning because the justices personally believed the Charter should be interpreted as a “living tree.” Living tree constitutionalism essentially allows judges to ignore the ordinary meaning of words and insert their own beliefs into their country’s Constitution. Multiple scholars have pointed out serious issues with the coherence of living tree constitutionalism as a matter of legal interpretation, but the Supreme Court has ignored the growing criticism as it continues to cite the analogy, most recently in June 2022.
The Court has used its newfound power under s. 7 to overrule Parliament on several highly contentious moral and political issues: abortion, prostitution, supervised taxpayer-funded sites to consume dangerous drugs, and euthanasia. In so doing, it has silenced the voice of Canadians and imposed its own views on the country through judicial fiat.
Math Tests are Racist
A third Charter provision whose original meaning the Supreme Court has discarded is s. 15(1), which bars discrimination by governments on a number of grounds such as race and sex. For decades, s. 15(1) was targeted at intentional discrimination. Three years ago the Supreme Court simply ditched that important concept in Fraser v. Attorney General (Canada), a case which challenged an unequal distribution of pension benefits as discriminatory.
In Fraser, the Court ruled that if a law or program results in different outcomes between demographic groups then it is discriminatory and unconstitutional, even without wrongful intent and even if disparities in outcome can be traced to non-discriminatory explanations, such as merit. In other words, Fraser basically deemed any law or program which results in anything but rigidly equal outcomes for every single demographic group presumptively illegal.
By 2021 Fraser’s illogical reasoning was on full display when an Ontario court struck down the province’s requirement that elementary and high school math teachers pass a grade-level math test. The court concluded that because there were differences in passing rates among teachers of different races, requiring math teachers to pass a math test was racist and unconstitutional.
By attributing differences in academic performance to discrimination, when these differences can be explained by other factors, the Court arrived at a legally and philosophically poor decision that threatens to do untold damage to individuals and society. Having teachers who cannot understand the concepts they are being paid to teach students bodes poorly for Canada’s youth. It also undermines if not effectively outlaws the concept of rewarding individual hard work and merit – a necessary element of any successful society.
As Kerry Sun and Yuan Yi Zhu wrote about this case, “[W]hen the courts insist on undoing such judgments on the basis of a flawed interpretation of a Charter right, the legislature may be duty-bound to invoke the notwithstanding clause.” When courts are outlawing standardized math tests, which have been used by human civilization since ancient times, things have clearly gone off the rails.
The “Human Dignity” of Mass Murderers
As shocking as it may be, banning math tests is not Canada’s most egregious example of judicial activism. That distinction belongs to the Supreme Court’s jurisprudence on s. 12, which states that “everyone has the right not to be subjected to any cruel and unusual treatment or punishment.” The Court has taken that to mean that dangerous criminals should be entitled to more lenient sentences. Despite a growing number of Canadians wanting stronger sentencing laws, and Parliament responding, the Supreme Court has struck down a number of such laws and encouraged lower courts to follow in their footsteps.
The most recent of these decisions came just two months ago, in the case of R v. Hills, when the Court struck down a mandatory minimum sentence for intentionally discharging a firearm in a populated area. The justices acknowledged that the mandatory minimum sentence would not be grossly disproportionate for the individual in the case, who had fired at a passing car. It could have stopped there, but instead the Court decided to strike down the entire law on the basis of a fictional individual whom it imagined could be similarly charged and sentenced for firing a paintball gun at a shed, complaining that, “[I]t would outrage Canadians to learn that an offender can receive four years of imprisonment for firing a paintball gun at a home.”
The Court called its use of fictional, imaginary scenarios to strike down mandatory minimum sentences “reasonable hypotheticals” – despite being unable to point to a single instance in which anyone had actually been arrested, let alone convicted, for shooting a paintball gun at a shed. In her dissent in Hills, Justice Suzanne Côté wrote that the “hypothetical is ‘more imaginary than real’ and is not a sound basis on which to nullify Parliament’s considered response to a serious and complex issue.”
The court has nevertheless continued to use fictional scenarios in other cases to strike down mandatory minimum sentences for gun and drug-related offences. The Court has called the Eighth Amendment to the U.S. Constitution, which like the Charter’s s. 12 prohibits cruel and unusual punishment, “highly relevant” to understanding s. 12. But, as Justice Thomas Wakeling of the Alberta Court of Appeal correctly noted in 2020, “[T]he United States Supreme Court bases its decisions on real-world scenarios – not hypotheticals so unlikely to occur that no one should make important decisions in reliance on them.” Instead of duly evaluating Wakeling’s concerns, the Supreme Court of Canada in Hills refused to engage with the substance of his criticism and haughtily waved off Wakeling’s contention as “lack[ing] merit.”
Emboldened by the Supreme Court, there have been over 100 decisions by lower courts over the last eight years striking down mandatory minimum jail sentences, often using similarly fanciful scenarios. Striking laws based on imaginary scenarios is judicial activism of a particularly dangerous kind, as it may involve putting serious criminals back on the streets.
The Court is also rapidly moving outside the Canadian moral mainstream. In last June’s Bissonnette decision, it sided with Alexandre Bissonnette, the mass murderer who had opened fire in a crowded mosque prayer room, killing six innocent worshippers. The Court decreed that every mass murderer be given “a realistic possibility of applying for parole” because prohibiting it would be “degrading in nature and thus incompatible with human dignity.” The decision devoted much more attention to the supposed dignity of the criminal than to his victims, who received passing mention.
Henceforth every Canadian mass murderer, a category which includes serial killers like Robert Pickton and Paul Bernardo, will be able to apply for parole after just 25 years behind bars, the same sentence they would have received had they killed one person, essentially providing a grotesque sentencing “discount” for each additional murder committed.
Just weeks after the Bissonnette decision, two mass murderers received such sentencing discounts. Alek Minassian, the man who sped a rented van down a busy Toronto sidewalk and murdered ten women in 2018, received the same sentence he would have received if he only killed one person, as did an Oshawa man who murdered his ex-girlfriend and her two children. Although the Crown had asked that this murderer be ineligible for parole for 75 years, to reflect the three people he murdered, and despite his taunting of his victims’ families in court, the sentencing judge stated that because of the Supreme Court’s Bissonnette ruling, “a consecutive period of parole ineligibility cannot be imposed.” In recent months, numerous mass murderers have become eligible for lesser sentences, which means that some of the most violent criminals in Canadian society could be back out on the streets earlier than previously thought.
By comparison, last month a New York judge sentenced Payton Gendron, who murdered ten black Americans and livestreamed his slaughter in a racially-motivated attack, to life in prison without the possibility of parole. In New Zealand, a judge sentenced Brenton Tarrant, who murdered 51 in two Christchurch mosques and who also live-streamed his slaughter, to life in prison without the possibility of parole. According to Canada’s Supreme Court, however, these sentences are “degrading” and “incompatible with human dignity.” It would seem more reasonable to call the Supreme Court’s position incompatible with justice.
What “Notwithstanding” was Supposed to Mean
In light of all this, it is important to recall that the notwithstanding clause was intended specifically to push back against unreasonable court decisions. In 1981, then-Justice Minister Chrétien stated clearly that the clause would allow legislatures to quickly “correct absurd situations” resulting from court decisions.
It was Peter Lougheed, then the Alberta premier, who suggested the clause in the final negotiations on the Constitution in 1981. Lougheed was backed by Allan Blakeney and Sterling Lyon, the premiers of Saskatchewan and Manitoba, respectively. Lougheed pointed out in a 1991 lecture that such a clause was hardly unusual; the Alberta Bill of Rights, the Quebec Charter of Human Rights and Freedoms and, for that matter, the 1960 Canadian Bill of Rights all had similar provisions. “We needed to have the supremacy of the legislature over the courts,” Lougheed explained. “We did not [want] to be in a position where public policy was being dictated or determined by non-elected people.”
Despite later protests over its use, Chrétien used similar language to explain its inclusion. It would, he said in 1981, “ensure that legislatures rather than judges would have the final say on important matters of public policy.” Then-Saskatchewan Premier Allan Blakeney saw the clause as necessary to ensure that the state could, for economic or social reasons, or because other rights were found in the circumstances to be more important, choose to override a Charter-protected right.
Lougheed made it clear that not only was the clause necessary, his government would be perfectly willing to use it. In 1983 he warned that Alberta would invoke the clause if the Supreme Court interpreted s. 2(d) to include a right to strike (which it refrained from doing for over 20 years). That was far from the most notable instance of such a vow. Pierre Trudeau, who spearheaded the Charter’s development, promised to use the notwithstanding clause if the courts ever interpreted the Charter to find a constitutional right to abortion. In a 1981 letter to Cardinal Gerald Emmett Carter, Archbishop of Toronto, Trudeau wrote: “Should a court decide at some future date that sections 7 or 15 do establish a right to abortion on demand, Parliament will continue to legislate on the matter by overriding the court’s decision.”
Brian Peckford, then the premier of Newfoundland and Labrador, was another key figure in the Constitutional negotiations and is the last living premier to have signed the Charter. In an email exchange with C2C Journal, Peckford asserted that using the clause is a proper response to judicial activism and called the modern assertion that it was a matter of political expediency meant to be used only rarely simply “invalid.” Peckford does not agree with “living tree” exponents, either. In a blog post last year, he wrote that for judges to change the plain meaning of the Constitution “isn’t democracy – this is rule by the unelected, which is the antithesis of parliamentary democracy. It’s time Canadians stood up and opposed such judicial interference.”
Thankfully, there has been a growing recognition in recent years of that need to push back. In the recent Conservative Party of Canada leadership race, multiple candidates including winner Pierre Poilievre promised to use the notwithstanding clause to keep mass murderers behind bars. Similarly, Tyler Shandro, Alberta’s Minister of Justice, has asked Ottawa to use the clause to reverse the Supreme Court’s 2022 decision striking down mandatory registration of convicted sex offenders, a decision which has benefitted rapists, domestic abusers and pedophiles.
Ultimately, those who appeal to the framers’ intent to argue against using the notwithstanding clause ignore that the courts themselves have interpreted the Constitution far beyond anything imagined by the framers. Lougheed, for one, certainly saw it occurring. In a 2002 interview he recalled expressing concern that the Charter would “let the courts take the place of elected parliamentarians. My God, that’s what’s happened.” Restoring a proper balance of powers will require elected governments to confront judicial activism. Invoking the notwithstanding clause is not only constitutional and democratic, but increasingly necessary to protect Canadians from the Supreme Court’s harmful decisions.
Selective Protection
Some Canadians worry that the notwithstanding clause could shield blatant violations of personal freedoms, as Quebec has been widely criticized for doing with Bill 21, which bars civil servants from wearing visible religious symbols at work. They should take some comfort in the clause’s built-in safeguard of a five-year time limit, however, requiring it then to be reinvoked by the legislature. Of course, voters still have the final say with their democratic right to oust any government that uses the clause to infringe on widely supported rights.
And while Bill 21 clearly infringes upon the right to religious freedom, there is no guarantee that judges would protect such rights any more than a provincial government. When several provincial law societies refused to accredit Trinity Western University because the law societies did not like the school’s faith-based code of conduct, for example, the Supreme Court sided with the law societies, even though the Court itself acknowledged that the law societies’ actions had infringed religious freedom rights. As well, retired Supreme Court Justice Claire L’Heureux-Dubé, a hero of the left, was an outspoken supporter of banning civil servants from wearing visible religious symbols.
Courts have also repeatedly upheld violations of constitutional rights, particularly during the Covid-19 pandemic when judges across the country upheld severe restrictions on liberty, speech, religion and conscience. Even in the last few months, courts have upheld Covid-19 vaccine mandates at colleges and universities, and even ordered that a woman whose survival depended on receiving an organ transplant remain ineligible to receive one unless she got vaccinated. On other issues, such as assisted suicide, Ontario’s highest court upheld a policy forcing doctors who do not support euthanasia to provide effective referrals, or else face punishment and the loss of their licence and livelihood.
In essence, the fear that the notwithstanding clause will prevent courts from protecting fundamental rights is misplaced, because courts are not doing a good job of protecting fundamental rights in the first place. Instead, they tend to expand protections for certain constituencies, generally those beloved by the progressive left, such as violent criminals, with no democratic accountability or check on their power.
Despite repeated assurances that Canada’s judiciary is not political, since gaining office in 2015 the Justin Trudeau government has appointed dozens of Liberal Party donors and failed candidates to the bench. Similarly, its “Independent Advisory Board” tasked with appointing Supreme Court justices is deeply partisan. Under Trudeau, this committee has been chaired by defeated Liberal politician Wade MacLauchlan and former prime minister Kim Campbell, who has repeatedly criticized Conservative Party leaders over many years, while several Board members have prominently advocated for left-leaning causes.
At the Supreme Court itself, Chief Justice Richard Wagner has actually boasted that he is “very proud” to call his court “the most progressive [court] in the world.” In 2022, Wagner described the Freedom Convoy as “deplorable” and accused convoy protestors of “tak[ing] other citizens hostage.” While Wagner has no problem using incendiary language to describe Canadians he disagrees with, he did not condemn the burning of dozens of churches in 2021, the deliberate destruction of statues and monuments across Canada, or the targeting of critical infrastructure and energy workers in western Canada.
Wagner is not alone in wading into politics. His predecessor, Beverley McLachlin, infamously compared Conservative Prime Minister Stephen Harper to a pet dog and has been involved in other dubious situations, while retired Justice Louise Arbour sharply attacked the Harper government’s foreign policy. Last year, now-retired Justice Abella likened the pro-life legal movement and the United States Supreme Court’s overturning of the Roe v. Wade abortion decision to upholding white supremacy and racial segregation. In doing so, Abella effectively accused Justice Clarence Thomas, the longest-serving black justice on the U.S. Supreme Court and a man who grew up in the shackles of racial segregation, of endorsing a reading of the Constitution that could bring back this odious practice.
The oft–repeated myth that Canadian judges are apolitical is clearly false. When judges strike down laws passed by Parliament and instead impose their personal views onto the country, they make decisions that are profoundly political in nature.
The way the Supreme Court has interpreted the Charter – by disregarding its original intended meaning, inventing new rights, and expanding its power to strike down legislation – has made it the most powerful political institution in Canada today. Nine unelected lawyers can nullify a unanimous vote in Parliament, as the Court did when it restored the ability of mass murderers to apply for parole. Even as they churn out decision after decision that is couched in the language of rights and professes the best of intentions, Canada’s judges and courts are proving to be ever-less reliable guardians of Canadians’ constitutional rights.
Without the notwithstanding clause, victims of crime and ordinary Canadians have no way to protect themselves from harmful court decisions. Ultimately, if one believes that judges should always have the final say on every single issue of importance to Canadians, there is no need for the notwithstanding clause. On the other hand, if one believes that judges can make bad and harmful decisions and that Canadians have the right to a voice in shaping the laws that they are governed by, then the notwithstanding clause is essential to preserving Canadian democracy.
