Star Phoenix – Doug Cuthand

Back in 1981, when the provinces and federal government were negotiating the content of the Charter of Rights and Freedoms, the provinces wanted a back door that would allow them to override the courts if they made an unfavourable ruling.

Trudeau senior objected at first, but eventually he reluctantly agreed. Later, Prime Minister Mulroney would remark that with the notwithstanding clause the Charter wasn’t worth the paper it was written on.

In any event, the notwithstanding clause was inserted in the Charter of Rights and Freedoms. Over the years it has been used more as a threat than its actual implementation. Provincial governments have only used it a few times, including when the Devine government in Saskatchewan used it in 1986 to protect back to work legislation. The clause has never been used by the federal government.

The Wall government has threatened to use the clause to override the recent court decision preventing provincial funding for students who are not members of the Catholic faith attending separate schools.

This shot across the bow to the justice system is mainly for political consumption, but several problems persist.

First, due process has not been completed since the case will be repealed and most likely decided by the Supreme Court.

Secondly, the case has opened up an important conversation. Should we have two school systems? Saskatchewan, Alberta and Ontario are the only provinces that have separate school systems; Quebec and Newfoundland have abolished the funding of separate schools. Does a religious school respect science? For example, a fundamentalist Christian school might refuse to teach the theory of evolution, maintaining instead that the world was created according to the Biblical version of events.

Third, the notwithstanding clause only remains in effect for five years; then it has to be passed again. This means a government can take a controversial court decision and kick it down the road for the next government.

Meanwhile, the federal Conservative leadership candidates are playing fast and loose with the law. Before he quit, Kevin O’Leary stated that he would claw back money from provinces that imposed a carbon tax. He didn’t say how, but the idea is fraught with constitutional issues. On his leadership website, Brad Trost states that he would use the clause to overturn decisions by “left wing activist judges.”

Lisa Raitt is on the record stating that she would use the notwithstanding clause to see that the Energy East pipeline would get built. What she meant by this is vague. Would she direct her wrath toward the protesters and those attempting to block the pipeline?

If she or her supporters think they could use the notwithstanding clause to override First Nations rights, they are mistaken.

The notwithstanding clause is not a magic wand that can be waved to make every problem simply disappear. It applies only to certain sections of the Charter of Rights and Freedoms. It can’t be used to override the democratic process, which would be counterproductive and lead to tyranny.

The recognition of treaty and aboriginal rights is not included in the Charter of Rights and Freedoms, but is included in section 35 of the constitution. The notwithstanding clause can’t reach treaty and aboriginal rights.

When the constitution was patriated, there was concern that our rights should have been included in the Charter of Rights and Freedoms. According to the federal and provincial governments, the rights were undefined — we basically had the right to go to court.

Court worked out, and a series of court victories set the scene for resource rights, aboriginal title, and self government and treaty rights. Since it’s outside the Charter, we can’t have court decisions neutralized by the notwithstanding clause. In retrospect, placing treaty and aboriginal rights in the Canadian constitution was the correct place.

The notwithstanding clause gives politicians an opportunity to sound decisive and talk trash, but its use is both temporary and reactionary. The Alberta government used it to override a court decision on same sex marriage and the Saskatchewan government used it to force government employees back to work. Both these examples had a temporary effect and were quickly forgotten.

Politicians hold back social progress at their peril.