Notwithstanding clause cheapens Charter

It is not, as some believe, a simple safety valve

As governments search for ways to respond to the Supreme Court’s Jordan decision, which set strict new limits on how long an accused person may be held without violating his right to be tried within a reasonable time, it occurs to me that, so far as Canada’s glacial pace of justice is concerned, there is an obvious if overlooked culprit: the presumption of innocence.

Not only is the onus in any criminal trial on the Crown, but the evidentiary standard is proof, not on a balance of probabilities, but beyond a reasonable doubt.

To meet this exacting standard ties up valuable judicial time and resources; worse, it results in an alarmingly high number of those accused being acquitted, most of whom, police and prosecutors agree, are probably guilty.

No one is suggesting that we should knowingly convict an innocent person. But surely we can agree that a wellplaced thumb on the scales of justice, via some relaxation of evidentiary standards, would go a long way to ensuring fewer of the guilty escape justice.

Well, no. We wouldn’t do that, would we? When it comes to the right to be presumed innocent, we make no exceptions. We insist on proof beyond reasonable doubt, not in most cases, or so long as it is convenient, but in every single case. Why, then, are we so eager to compromise with regard to other rights?

Why, particularly, is there such a ready market for invoking the notwithstanding clause, by means of which governments are permitted to suspend the rights guaranteed in the Charter, on the sole proviso that they declare openly they are doing so?

The presumption of innocence may not be in anyone’s sights yet, but the Jordan decision has led to calls for the clause to be invoked to set aside another Charter right, the right to a speedy trial.

Indeed, notwithstanding — formally, Section 33 of the Constitution Act 1982 — is very much in the air these days. Conservative leadership candidates have been jockeying with each other over who is most eager to invoke it. Most recently, the Premier of Saskatchewan, Brad Wall, has announced he will use the clause to get around a recent court ruling on funding of religious schools.

Defenders of the clause like to claim that without it, the courts would have “the last word.” Critics are depicted as believing the courts should have supremacy over the legislatures; usually this is accompanied by some admonition to the effect that the courts “sometimes get it wrong,” as if anyone imagined they were infallible.

This is, needless to say, a caricature. The case against notwithstanding is not that the courts are superior to the legislatures, but that they are “other than” the legislatures. The rights set out in the Charter are essentially promises: in all of our laws, our leaders solemnly declared, and in all of our acts, we will abide by these guarantees.

And to show they meant it — that these were not ordinary political promises, to be abandoned when expedient — they passed them into law, as legally binding commitments.

But a promise, to be binding, must have an independent adjudicator. If governments and legislatures were allowed to decide for themselves whether they had lived up to their promises, they would be of little value. Yet that is what the notwithstanding clause amounts to. It allows political leaders to substitute their own judgment for that of the courts; to wriggle out of their promises, while pretending to keep them.

No right is absolute, of course — though the presumption of innocence is pretty close — but the Charter already allows for exceptions: Sec. 1, the “reasonable limits” clause. There would seem little need for an additional, “unreasonable limits” clause.

It’s not about either side having the last word: it is almost always possible for the legislature to redraft a law that has been struck down, in ways that fulfil its original purpose, but at less harm to rights. Yes, the courts sometimes get it wrong — if you’ve noticed, so do the legislatures — but the image of the courts as power-mad usurpers is quite at odds with the actual record: there are at least as many cases where they have been too eager to defer to the legislatures as the contrary.

Of course, notwithstanding is part of the Charter, too. Defenders like to claim there would have been no Charter without it but, as long as we’re into historical mighthave-beens, two can play at that game: what if, rather than the grubby late-night deal that gave us the notwithstanding clause, Pierre Trudeau and René Lévesque had stuck to their original agreement, providing for a referendum on the Charter?

There seems little doubt the referendum would have passed — that’s why the other members of the Gang of Eight provinces opposed to Trudeau’s plan were moved to strike a deal — in which case there would have been no notwithstanding clause, nor any of the vast industry of rationalization and revisionism that has grown up around it.

Notwithstanding is not the emergency safety valve its advocates pretend, but a bottle marked “drink me”: it’s existence is a standing invitation to use it. Even in repose it is a silent rebuke to the Charter, for it suggests that its guarantees are not guarantees at all, but merely guidelines, contingent at all times on the mood of the government of the day.

And each time it is used — it has not been, federally, but stay tuned — makes it easier to do so a second time, and a third, and so on, until it has become little more than a list of fond hopes and fine phrases.

That, indeed, would seem to be the plan.