Few Canadians likely even remember the time a sitting prime minister vowed to abolish the notwithstanding clause.
In the dying days of the 2006 federal election campaign, then-Liberal leader Paul Martin vowed to reopen the Constitution to remove Ottawa’s ability to override the courts by invoking Section 33 of the Charter of Rights and Freedoms. The promise was not in the Liberals’ 2006 election platform; Mr. Martin had not even informed his own caucus before springing his plan on the electorate during an English-language television debate. But he wanted to depict a Conservative government led by Stephen Harper – who had refused to rule out using the override clause to ban same-sex marriage, before reversing that stand – as a threat to minority rights.
Asked at the time what she thought about abolishing the notwithstanding clause, then-Supreme Court of Canada chief justice Beverley McLachlin was circumspect. “I wish we weren’t in the middle of an election and that question weren’t quite so political,” she told Queen’s University students. “I don’t think it’s for me as a judge to say whether it should be there or not. I think my role as a judge is to apply the law.”
Still, her comments came after a lecture in which she had championed the role of the courts in protecting fundamental rights – and after she had given royal assent to the Civil Marriages Act, which legalized same-sex marriages, while standing in for then-governor general Adrienne Clarkson.
“To confirm human dignity is to reject discrimination,” Ms. McLachlin said, before adding: “The tendency to fall into discrimination is deeply rooted in the human psyche.”
Fast forward to last week, when Ms. McLachlin joined six other ex-Supreme Court judges and more than 100 Canadian jurists and law professors in denouncing the Israeli government’s proposal to prohibit the country’s Supreme Court from overruling the Knesset, including in cases involving the quasi-constitutional Basic Law on Human Dignity and Freedom. That, according to their open letter, is “the crown jewel of Israeli law.” The proposed override power, they added, would “portend a future for Israel in which [basic] rights lack effective judicial protection.”
Some supporters of the changes tabled by Prime Minister Benjamin Netanyahu’s right-wing coalition have pointed to Canada’s notwithstanding clause as the model for reforms, suggesting they provide legitimate protection against judicial activism.
The statement signed by Ms. McLachlin and her former Supreme Court colleagues called that argument “disingenuous.” Its authors said Canada’s system of government has mechanisms that “disperse or limit political power and provide safeguards against [the] intemperate use” of the notwithstanding clause. These include a written constitution, an electoral system based on geographical constituencies, a bicameral legislature and a federal structure that divides power between Ottawa and the provinces.
As others have pointed out, these seem like differences without a distinction. None constitutes a serious barrier to any Canadian government’s ability to invoke the notwithstanding clause, particularly in cases where public opinion favours such a move.
So it is difficult not to read into the statement signed by Ms. McLachlin and ex-Supreme Court justices Frank Iacobucci, Louis Lebel, Marie Deschamps, Morris Fish, Rosalie Abella and Marshall Rothstein a certain indictment of the notwithstanding clause. In no way can the statement be a seen as a defence of the override power.
Willfully or not, these former top judges have thus inserted themselves into a renewed political debate about the future of the notwithstanding clause that puts English Canada on a collision course with Quebec. That is because whatever consensus once existed on the legitimacy of the notwithstanding clause – the fruit of a compromise between then-prime minister Pierre Trudeau and western Canadian premiers that paved the way for the 1982 patriation of the 1867 Constitution – has faded outside Quebec.
An Angus Reid Institute poll published last month found that a strong majority of Canadians in every province except Quebec favoured abolishing the override clause; in Quebec, fully 63 per cent opposed eliminating it. More than 80 per cent outside Quebec said the province’s use of the notwithstanding clause to shield Bill 96, which protects the French language, from judicial review was unacceptable. In Quebec, only 44 per cent deemed it acceptable – but more than seven in 10 supporters of the governing Coalition Avenir Québec approved.
Quebeckers are hardly unanimous in their support for the notwithstanding clause. But a broad consensus exists among the francophone majority that – in the absence of a “distinct society” clause in the Constitution, as proposed in the 1987 Meech Lake accord – the notwithstanding clause is a sine qua non to protect Quebec’s cultural and linguistic specificity. English Canada’s increasing disdain toward the clause suggests to francophone Quebeckers that our differences may truly be irreconcilable, after all.