Doug Ford’s use of the not­with­stand­ing clause has divided peo­ple into two camps

The Globe and Mail (Prairie Edition) - - NEWS - MAR­GARET WENTE

The use of the not­with­stand­ing clause has peo­ple divided into two camps

The not­with­stand­ing clause – the clause in the Char­ter that al­lows a gov­ern­ment to leg­is­late in spite of (“not­with­stand­ing”) cer­tain other clauses in the Char­ter – is one of the great fault lines in Cana­dian so­ci­ety. Some peo­ple be­lieve that it should al­most never be in­voked, be­cause mere po­lit­i­cal in­ter­ests should not be able to over­rule the judges. Oth­ers see it as a check against the rigid­ity of a rights­based Con­sti­tu­tion. Th­ese two camps will never be rec­on­ciled.

“We be­lieved that the Char­ter by it­self was a se­ri­ous threat to the ‘sovereignty of the Par­lia­ment,’ ” says Wil­liam Thorsell, a for­mer ed­i­tor-in-chief of The Globe and Mail. In 1981, when the great Char­ter bar­gain was be­ing bro­kered, Mr. Thorsell was as­so­ciate ed­i­tor of the Ed­mon­ton Jour­nal. The not­with­stand­ing clause, he re­calls in an e-mail to me, was de­signed to keep the sovereignty of Par­lia­ment alive, and to stave off Amer­i­can-style ju­di­cial ac­tivism. What it meant was that judges could not strike down demo­crat­i­cally en­acted laws with im­punity. It was a nec­es­sary check against ju­di­cial over­reach.

“Courts are some­times im­per­fect or even strange in their judg­ments un­der the Char­ter,” Mr. Thorsell says. In fact, many of us can think of times when we wish the judges had been been over­ruled. The 1985 Singh de­ci­sion comes to mind, when, as for­mer Globe colum­nist Jef­frey Simp­son put it, the Supreme Court “gummed up a rea­son­ably ef­fec­tive [refugee de­ter­mi­na­tion] sys­tem by ex­tend­ing pro­tec­tion un­der the Char­ter of Rights and Free­doms to ‘ev­ery­one’ who put a foot on Cana­dian soil.” That de­ci­sion has plagued the refugee sys­tem ever since.

In the other camp are those who think the judges should al- ways reign supreme. Th­ese peo­ple would rather trust judges than politi­cians to pre­serve our rights. To them, the not­with­stand­ing clause is a men­ace be­cause it ul­ti­mately gives the politi­cians the up­per hand. Some ar­gue that the not­with­stand­ing clause is a “loop­hole” in the Char­ter. But this is ex­actly back­ward. It is an in­te­gral part of the Char­ter. With­out it, there would be no Char­ter. And it was al­ways in­tended to be used. Even Pierre Trudeau, who only re­luc­tantly ac­cepted the not­with­stand­ing clause be­cause there would have been no Char­ter deal with­out it, said he would use it to over­ride the courts if they ap­proved abor­tion rights.

“The lived ex­pe­ri­ence of hav­ing checks on both courts and politi­cians has worked out pretty well,” says Howard Anglin, who is ex­ec­u­tive di­rec­tor of the Cana­dian Con­sti­tu­tion Foun­da­tion and a for­mer le­gal ad­viser to Stephen Harper. “The Ford case should serve as a help­ful re­minder to the courts that their pow­ers are lim­ited, and that if they wade into the po­lit­i­cal arena then the po­lit­i­cal arena can push back,” he tells me in an in­ter­view.

Peo­ple like to think of the not­with­stand­ing clause as a last re­sort, to be used only in the most se­ri­ous cases. In fact, it’s un­likely to be used in this way, pre­cisely be­cause the most se­ri­ous cases are the most po­lit­i­cally charged and the po­lit­i­cal risk is too great. Out­side Que­bec, the clause has been used in Saskatchewan to re­solve a labour dis­pute and to over­ride a court de­ci­sion that would force non-Catholic kids out of Catholic schools. No one blinked. It was not, how­ever, used to quash pay­ments for forced ster­il­iza­tion claims in Al­berta, as the gov­ern­ment had con­tem­plated. Too con­tro­ver­sial.

So when is it ap­pro­pri­ate to use the clause?

“It should be used when there is a gen­uine dif­fer­ence of in­ter­pre­ta­tion on rights and where the leg­is­la­ture de­cides to have the last word in the con­text of an in­ter­pre­tive dis­pute with the courts,” says Dwight Newman, a law pro­fes­sor at the Univer­sity of Saskatchewan. “The other in­stance is when there is some need to re­act quickly to a ju­di­cial de­ci­sion,” he tells me.

Which brings us to Doug Ford. The strong­est crit­i­cism of his use of the not­with­stand­ing clause is that it should be used as a last re­sort, and this case wasn’t that. This must be set against what Mr. Anglin calls a “cyn­i­cal ma­nip­u­la­tion of the Char­ter” by the judge, who struck down the gov­ern­ment’s leg­is­la­tion, to change the num­ber of seats on Toronto City Coun­cil. “The judge’s rul­ing was so clearly un­sound that if Section 33 isn’t an ap­pro­pri­ate con­sti­tu­tional re­sponse here, when would it ever be?” Mr. Anglin tweeted. Section 33, he wrote, is a re­minder that ” if judges want to play pol­i­tics, the leg­is­la­ture can do it bet­ter.”

I’m no fan of Doug Ford. I don’t care how many seats there are on Toronto City Coun­cil, and I don’t think Mr. Ford should be push­ing those peo­ple around. But I don’t think judges should be push­ing our elected rep­re­sen­ta­tives around, ei­ther – even if their name is Ford. Con­sti­tu­tion­ally, there’s noth­ing wrong with what he did. Po­lit­i­cally – well that’s an­other mat­ter. The vot­ers will have the fi­nal say on that. Which is as it should be.

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