Hard Centre: Notwithstanding the Notwithstanding Clause

The Notwithstanding Clause is supposed to protect Canadians in the event of emergencies not foreseen by our federal or provincial governments, or by the folks who drafted the Constitution back in the 1980s. It allows governments to say that, notwithstanding the rights and protections defined in the Constitution, they can be suspended in the interests of the national, or provincial/territorial, good.

Since then, it’s become the Clause of Damocles, hanging over Canadian politics and tempting weak leaders to invoke it because they can’t find other ways to get their legislation passed – or because they want to use the clause to show they’re ready to take decisive action, consequences be damned.

The clause was intended to be used rarely, if ever, but in recent years, as our institutions have weakened, it’s become a tempting target for leaders who want to act tough. Back in 2000, the Alberta government tried to use it to limit marriage rights, before being told to back off by the courts, who ruled that marriage is defined at the federal level.

During this campaign, Conservative leader, Pierre Poilievre, resurrected a zombie policy conjured then abandoned by US Republicans and has threatened to force it through by using the Notwithstanding Clause. Three-strikes laws mandate anyone convicted a third time receive a mandatory sentence with no chance of parole. Similar laws, popular from the 1990s onwards, have or are being repealed across the United States when it became clear that criminals facing a third arrest felt they had nothing to lose – suddenly stealing a package of gum meant the same sort of sentence you’d usually get for a serious crime. That meant criminals were more likely to try and avoid arrest, often by hurting or killing innocent civilians – or the police officers sent to do their job, of protecting the public.

Unlike Mr. Poilievre, my belief in law and order isn’t subjective – I’ve spoken out against road and other blockades by environmentalists and First Nation activists, against the Convoy that paralysed Ottawa – with the open support of Mr. Poilievre, the only MP to embrace them –, and against the Hamas enthusiasts who’ve terrorized Canadian Jews and occupied public spaces since October 2023. We need bail reform, safe streets, and a crackdown on crime. What don’t we need? To play games with our constitutional rights – especially when there are better, less sexy, more constructive tools available to all governments.

First, it makes sense to impose some clarity on the use of the Clause. Why not look to the Clarity Act, which insisted that any province wanting to leave Confederation had to get a mandate to separate based on a clear majority of the population voting for a clear question. It was an antidote to the use of misleading questions by the Parti Quebecois in the 1980 and 1995 sovereignty referendums, and a reassurance to the country that 50.01% of residents in one province couldn’t break up our country. We need a similar law to guide the use of the Notwithstanding Clause, clarifying what an unforeseen emergency looks like and ensuring that traditional legal and political tools had been used and exhausted before it can be used.

In addition, governments need to refer more policies to the Supreme Court, asking for pre-emptive rulings on controversial issues. When I was New Brunswick’s Education Minister, I tried to get a bill - to broaden school vaccine programs - referred to the courts. With antivaccine activists insisting the bill was unconstitutional, and my supporters insisting that it was, my take was straightforward: if there’s a legal question on the table, ask the courts to rule on it! This doesn’t give politicians the opportunity to look tough, but it does give them the chance to pass better laws, which is supposed to be the point, right?

Our rights and freedoms should never be up for grabs by politicians who want to turn their inability to govern within the constitution into a public performance designed to show off their political muscles, at the expense of our rights. A law to guide interpretation of the clause is a good first step, and normalizing the use of reference questions can reduce the political temperature around hot issues. That leaves us with greater clarity around the rare cases when the Notwithstanding Clause must be used – and hopefully less damage to our national unity when those unforeseen emergencies arise.