Politicians learning to stop worrying and love the notwithstanding clause

Just like the opening line of a noted biography of him, Pierre Trudeau’s constitutional notwithstanding clause “haunts us still.”

For many Quebec anglophones of a certain age, the incantation of non obstante may summon ghosts of language horrors past (pardon the pre-halloween theme). “Notwithstanding” is a trigger word for all the anger and turmoil sparked by what’s known to the ancients as the great sign law debate of the late 1980s.

The contentious loophole is in the news, of course, because Ontario Premier Doug Ford is determined to use it to negate a court decision that rejected as unconstitutional his plan to reduce the number of seats on Toronto’s city council.

As of this writing, legislators at Queen’s Park were debating Bill 31, the Efficient Local Government Act, which uses the notwithstanding clause to override the court decision and force Toronto to hold elections for 24 seats rather than 47.

Only two provinces have used the notwithstanding clause since it was, some say, surreptitiously inserted into the 1982 Constitution - a long and baffling story, proceed at your peril. Saskatchewan used it in 1986 to force provincial employees back to work. The Parti Quebecois government of René Lévesque inserted it in all legislation passed by the province from 1982 to 1987 to protest the Constitution, to which Quebec was not and still is not, a signatory.

In 1988, following a Supreme Court of Canada decision, Quebec Liberal premier Robert Bourassa used the clause to enforce provisions of Law 101 that imposed limits on the use of the English language on commercial signs in the province. The move prompted the resignation of three of Bourassa’s English ministers, Richard French, Herb Marx and Clifford Lincoln, whose “rights are rights are rights” speech became a rallying cry for the beleaguered anglophone community in Quebec.

Quebec’s use of the clause to suppress the constitutional right to freedom of expression would, to revert to the Halloween theme, come back to haunt Bourassa. Opponents of the doomed Meech Lake Accord, whose goal was to get Quebec’s John Hancock on the Constitution, pointed to the action as proof Quebec could not be trusted with the new powers the Accord would have granted the province.

Accordingly, Bourassa and thenprime minister Brian Mulroney’s cherished pact died a withering death and that flop set aflame Quebec nationalism that culminated in the whiteknuckled referendum vote of 1995.

All this to say the notwithstanding clause is a powerful legal and political mechanism that could be dangerous in the wrong hands. In the case at hand, Ontarians may rise up and punish Premier Ford for his use of the constitutional nuclear weapon four years hence. Many, however, may applaud his fearlessness in the cause of cutting government fat.

Quebec politicians, obviously, have taken notice of Ford’s bold move, and its special circumstances. The Ontario government is in such haste to pare down Toronto city council in time for an election in a month’s time it skipped right over the bothersome court appeals process and pushed the notwithstanding button.

Speculation is now rampant, with the prospect of a Coalition Avenir Quebec (CAQ) government, of how a premier Francois Legault might use the suddenly less sacred notwithstanding instrument to enact his agenda. Leading the list of potential non obstante targets would be the CAQ’S vow to ban the wearing of religious accoutrements by government employees, including daycare workers. The Liberals current veil law seems destined to land in front of the Supreme Court of Canada.

Legault has said he would have no qualms about resorting to the notwithstanding clause; after all it is in his DNA as a former péquiste minister, and, after all, a Quebec Liberal government did famously use it - although it did not renew it, as required, when its five-year limit expired.

Then there’s the question of Legault’s proposed French language competence and Quebec values tests to be required of immigrants. Should, as seems likely, these measures, if adopted, be challenged in the courts, would a CAQ government resort to the notwithstanding clause to impose its will.

Using the Constitutional uber-power in the name of French language rights might have heroic popular appeal, but it may have less endearing optics when used against minorities and immigrants.