Gordon Gibson was special assistant to Prime Minister Pierre Trudeau.
There has been a great fuss over the first use of the notwithstanding clause by Canada’s most populous province. Discussion of this subject is bound to be both deep and emotional. The Constitution is the rules of the game. Like gravity, it is silent, taken for granted but incredibly influential and always with us. Ignore it at your peril.
So there it sits – Section 33 of the Charter. It allows legislatures to overrule judges in very broad areas of our lives. Of course, those who oppose the Charter would note that pre-1982, legislatures could overrule judges in every part of our lives and we managed somehow.
Anyway, there is notwithstanding, not going away. The rational question is how best to use it, but we can’t get there without dealing with the emotional aspects first.
Boiling it down, there are many in our society who truly believe that governments are not to be trusted and our basic liberties are guaranteed only by nine non-elected Supreme Court judges, standing firm against the transient and uninformed politics of the day.
There are others who feel deeply that elected people have been the essence of democracy since the Magna Carta and that making the views of nine non-elected legislators-for-life brings about non-accountable “judge-made-law,” and certainly there have been some bad ones.
Both sides are right. Legislatures and governments and courts are all composed of human beings, each and every one of whom has imperfections. Who is to have the final word?
In rewriting the Constitution almost 40 years ago, then-prime minister Pierre Trudeau and the premiers of the day worried a lot about this. They reached a compromise. Courts would pronounce on any aspect of our rights and freedoms (the Charter is silent on our responsibilities, alas) that made its way through the legal system, and there the matter would generally end.
However, on some matters under the new law, governments could overrule the Court for a renewable period of five years. That list is very material, including freedom of religion, speech, association and assembly, legal due process and equality rights.
The result was to be a new balance between the elected and judicial branches. No one was totally pleased with the outcome but differences were swept under the rug in a paroxysm of national self-congratulation and relief that the constitutional wars were over (except in Quebec).
The new balance held some promise. Supreme Court Justice Frank Iacobucci used to hopefully talk about a “dialogue” between the courts and legislatures, with “notwithstanding” in the background. But with rare exceptions, legislatures have failed to rise to that responsibility. It has actually been a remarkable display of political cowardice, with elected people declining to stand up for their principles where they differed from judges - as they have every right to do, being more direct representatives of the people.
So with the Charter, we entered an area of judge-made law, which can show erudition but lack the benefit of genuine dialogue in the real world. We need only look south of the border to see the endgame of that approach. Explosive matters such as abortion and race, for example, saw strong leadership by the U.S. Supreme Court but remain tragically open sores in that republic because the politics were never settled.
To do better in our land, how to gain the dialogue theoretically opened by the constitutional amendments? Surely the courts have not been shy. They have been busy and vigorous in establishing law when Charter matters came before them. It is now up to the legislatures to rise to their duties when they have genuine differences with the courts in the affected areas.
That would mean more frequent use of S. 33 and thus more dialogue. It will be messy, but lively democracy is a balance, not a tidy thing.
Ontario Premier Doug Ford is not the man able to confer respectability on this approach, but he has contributed to that start of its normalization. I think all the framers of the 1982 amendments would be content with that. Indeed, most would be pleased to know that someone - most anyone, really - is making use of the safety valve clause they fought so hard to include.