LINDSAY: Why the Notwithstanding Clause should be invoked

Without Section 33, there would be no way to reverse a politically-biased ruling by the Supreme Court.

Christopher Lindsay Montreal QC

In September 2018, when Doug Ford announced his plan to invoke the notwithstanding clause to reduce the size of Toronto City Council, it sparked outrage from the political left.

The notwithstanding clause is a necessary check on power

The notwithstanding clause, aka Section 33 of the Charter of Rights and Freedoms, allows a provincial or federal government to pass legislation that overrides a court ruling on sections 2 and 7 to 15 of the Charter. It suspends a ruling for 5 years and can be renewed again indefinitely. The notwithstanding clause is a necessary power to maintain the rule of law. Without Section 33, there would be no way to reverse a politically-biased ruling by the Supreme Court. Although it has never been invoked by the federal government, it should be, given the history of judicial activism by the Court.

The "living tree" interpretation of the constitution

There are two schools of thought among the Canadian judiciary, and they are diametrically opposed. The first, championed by the left, is the “living tree” doctrine. In 1929, Lord Sankey said that the Constitution is “a living tree capable of growth and expansion within its natural limits,” a document that is in “a continuous process of evolution.” In other words, the Constitution should not be interpreted literally; it can be reinterpreted as society changes. Hence, the living tree doctrine allows judges to become de facto legislators who create rights out of thin air, even though such rights are not stated in the Constitution or the Charter. Case in point: When the Constitution was signed in 1982, section 35 stated, “the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” The National Indian Brotherhood protested the word “existing”, declaring the signing of the constitution a “day of mourning.” The Constitution did not give aboriginals any new rights. However, in 2004, in the case Haida Nation v. British Columbia, the Supreme Court ruled that the government has a “duty to consult and accommodate Aboriginal peoples” on any land they lay claim to. It declared this duty was “grounded in the principle of the honour of the Crown,” a judge-made term that appears nowhere in the Constitution. With this ruling, the Court expanded the rights of Aboriginal peoples, even though the Constitution only recognized “existing” rights.

The literal interpretation of the constitution

In contrast to the living tree doctrine, the second school of thought among the judiciary is originalism. When judges are originalist, they interpret the Constitution and Charter literally, according to their original meaning. Laws can only be struck down if they literally violate either document, and no new rights can be granted. Originalism limits the power of judges. New rights can only be created by the federal and provincial governments amending the Constitution or Charter. Conservative judges are more likely to be originalist, but they are a minority in Canada. According to Emmett Macfarlane, a professor at University of Waterloo, “Law schools in Canada are homogeneously moderate-to-left-of-centre… There’s less ideological diversity.” Because there are no conservative law schools in Canada, the living tree doctrine dominates our judicial system. With the living tree doctrine, judges strike down laws or rule against institutional policies that violate so-called “Charter values”, another judge-made term that is not in the Charter. As Justices Suzanne Côté and Russell Brown point out, Charter values are “entirely the product of the idiosyncrasies of the judicial mind that pronounces them to be so.” Charter values are usually interpreted from a progressive point of view. In 2004, the Supreme Court wrote, “A large and liberal, or progressive, interpretation ensures the continued relevance and, indeed, legitimacy of Canada’s constituting document.” The Supreme Court is unashamedly progressive in its judgments. Hence, a Conservative government should be willing to invoke the notwithstanding clause to overturn rulings by activist judges.

The notwithstanding clause takes power away from activist judges

It is often argued that the notwithstanding clause gives Parliament supremacy over the courts. But this is only true in the short-term. Section 33 ultimately takes power away from activist judges and gives it to the people. If voters object to a premier or prime minister invoking the notwithstanding clause, they can vote for a political party that will allow the decision of the court to stand. Even if a majority of Canadians agree with the decision of the Supreme Court when it grants a new right, only the federal government and the provinces should have that power. The living tree doctrine has made the Supreme Court more powerful than Parliament. Although we live in a parliamentary democracy, Canadians are ruled by a Supreme Court of unelected judges who are accountable to no one and whose politically-biased rulings can last for generations.

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