The notwithstanding clause, Section 33 of the Charter of Rights and Freedoms, allows Parliament and provincial legislatures to override certain Charter rights. Despite criticism from some politicians, academics and the media, the clause is constitutionally sound and useful.
However, Section 33 has a fraught history. It came about as a result of tense negotiations between the federal government and provincial premiers in 1982 to repatriate Canada’s Constitution from the United Kingdom.
Some premiers feared too much of the legislative prerogative of Parliament and provincial legislatures would be placed in the hands of the courts. They didn’t trust the courts to stick to their proper role of interpretation.
Only when the federal government agreed to add the notwithstanding clause did the premiers sign on.
The clause is the safety valve the premiers required, giving legislatures and Parliament the power to override judicial rulings related to the Charter. The legislation, which applies only to Section 2 and Sections 7 through 15 of the Charter, has to be renewed every five years.
The clause will likely be used more frequently in the future because the premiers’ worst fears of 1982 have been realized. Courts have been overreaching, usurping the role that properly belongs to elected representatives. The late Justice Sam Freedman of the Manitoba Court of Appeal once said an overreaching judge should not “stick his big judicial nose” into matters beyond his jurisdiction.
One area where the notwithstanding clause could be usefully employed is in relation to our overloaded immigration system. Tens of thousands of “illegal/irregular” migrants are scheduled for hearings that won’t take place for many years (if at all). The root of the dysfunction is the 1985 Singh case, which decreed that a formal oral hearing be scheduled for every asylum seeker.
Most Canadians have lost confidence in an immigration system that is broken by any definition, giving rise to an unhealthy anti-immigrant sentiment. Yet, the government of Prime Minister Justin Trudeau refuses to acknowledge there’s a problem and demonizes those who point it out.
The Singh line of cases is but an example of judicial overreach – where an activist court “has stuck its big judicial nose” into what should be the business of the people’s elected representatives. When the courts frustrate the will of the legislative bodies, Parliament and the legislatures should not hesitate to push back by carefully and judiciously employing the notwithstanding clause. Areas where too-active courts have barged into territory properly belonging to elected representatives is space calling for the clause.
Legislative oversight, with very careful committee processes costing out matters, is essential for proper use of taxpayers’ money. Courts have no such processes – taxpayers’ money is not a court’s primary concern.
The clause should be used only in exceptional cases and after careful deliberation. However, where the will of the people would be thwarted by an overreaching court, the clause should be used.
Ontario’s government of Premier Doug Ford rightly employed the clause to reduce the size of Toronto’s city council – after a judge issued a badly-reasoned decision to prevent it.
At Ontario’s next provincial election, the electorate rightly will have the final say.
The role of judges is to interpret the law – not to make it.
Brian Giesbrecht, a retired judge, is a senior fellow at Frontier Centre for Public Policy.