by Richard Mailey and Ian Peach. Originally published on Policy Options
October 25, 2023
Much has already been written about Saskatchewan Premier Scott Moe’s decision to apply the Constitution’s notwithstanding clause to his controversial school pronoun policy.
At its simplest, this preemptive move is meant to prevent judicial review of a new provincial rule stating that children under 16 require parental consent before school staff may recognize their changes of preferred names or pronouns.
Even if the Saskatchewan government ultimately backs down, as the Ontario government did in a separate case last year, the fact that the notwithstanding clause is even part of the conversation is deeply troubling.
It is also the latest chapter in a story of the clause’s creeping normalization, which includes Quebec’s Bill 21 in 2019 and subsequent uses by Quebec and Ontario in 2021 and 2022.
This recent uptick in its usage raises the question: should there be greater limits around the use of the notwithstanding clause to prevent its deployment as a proverbial populist battering ram?
Such limits needn’t be anti-democratic, we suggest. In fact, added conditions for the clause’s use could provide an enhanced role for citizens in deliberations over how and when this extraordinary measure is used.
Before suggesting how this could be done, though, it is first necessary to say something about two variables on which the legitimacy of a notwithstanding invocation hinges.
The first is the state of the courts and of specific judicial decisions about Charter rights.
While judicial protection of rights is generally viewed as a vital ingredient of any modern liberal democracy, there is a risk that courts will sometimes perform their rights-protecting role in ways that do more social harm than good.
A court, for example, may protect a specific right by riding roughshod over another or may grossly underestimate the importance of social goals that ostensibly conflict with a constitutionally protected right.
The notwithstanding clause empowers legislatures to address this risk, but it does so without doing enough to promote other forms of rights-sensitive scrutiny of a government’s proposals. This is the second variable on which the legitimacy of a notwithstanding declaration depends: the existence of alternative channels of accountability beyond the courts.
To state this problem succinctly, if you are going to cut courts out of the conversation (and this may sometimes be justified), you need to ensure that the government is still held to account by someone — some plausibly independent institution or group that can assess the impact of the government’s actions on rights.
To the credit of its framers, the notwithstanding clause does already purport to do this in two ways.
First, a notwithstanding declaration must be contained in a piece of legislation, which means that it will be subjected to legislative scrutiny and will require the support of a majority of elected legislators.
Second, a sunset clause places a five-year cap on each invocation so that a government wishing to use the clause for more than five years will have to face an election and, hence, the judgment of the electorate.
The problem is that since majority governments are the routine outcomes of elections in Canada, the legislative process is usually dominated by the government and the legislature thus provides only a limited check on government actions.
Moreover, while electoral scrutiny is a nice idea in theory, nothing guarantees that a notwithstanding declaration will be a live election issue or that voters will reflect on the declaration in a sufficiently rights-sensitive way (especially if the election is some years after the declaration was made).
What is the alternative, then? In a forthcoming paper in the journal Constitutional Forum, we argue that governments should act swiftly to legally mandate intensive public scrutiny of notwithstanding declarations in a new way.
Specifically, we propose that governments may use the notwithstanding clause only after they convene a representative jury of citizens that can hear evidence from affected parties and experts, debate what they have heard and make public judgments about the justifiability of the government’s proposals.
Admittedly, the ordinary legislation to establish such a rule (as opposed to a constitutional amendment) could be easily repealed by a government determined to use the notwithstanding clause.
The hope, though, is that introducing such laws in several provinces — and perhaps even at the federal level — would help promote a shift in the way we think about the notwithstanding clause.
Instead of viewing it as a legal blank cheque for governments, we want to reaffirm the more nuanced idea that it permits governments to swap judicial scrutiny for democratic scrutiny of decisions that collide with Charter rights.
The keyword is scrutiny: governments should not be free to use the notwithstanding clause to rule by fiat, appealing only to their own caucus members and flatly disregarding the interests of vulnerable individuals or groups.
This is not why the notwithstanding clause is part of the Charter and we can take real action to prevent it being used that way.
This article first appeared on Policy Options and is republished here under a Creative Commons license.