COLUMN: Think Again – We need to keep the notwithstanding clause

Hey there, time traveller!
This article was published 09/03/2024 (421 days ago), so information in it may no longer be current.

The Charter of Rights and Freedoms almost didn’t happen. During the 1981 constitutional conference, there was a tense standoff between Prime Minister Pierre Trudeau and eight provincial premiers, also known as the Gang of Eight.

Trudeau wanted to patriate the British North America Act and add a Charter of Rights to the constitution. The Gang of Eight expressed serious reservations about putting too much power in the hands of appointed judges rather than elected officials.

Hence the notwithstanding clause. During a late-night negotiation session, Justice Minister Jean Chretien agreed to add section 33 to the Charter, which gave elected governments the authority to temporarily override judicial decisions based on section 2 or Sections 7-15 of the Charter.

This compromise reassured the provincial premiers that elected officials would retain the final say on contentious social policy. By agreeing to accept the notwithstanding clause, Trudeau was able to get nine out of the ten premiers to sign the new constitution. The rest, as we say, is history.

The notwithstanding clause has never been used by the federal government and only occasionally by the provinces. Quebec used it to protect its French-only language law, Bill 101, and, more recently, Bill 21 banning the wearing of religious attire by workers in the public sector. Saskatchewan Premier Scott Moe invoked it last fall to protect his government’s new requirement for schools to notify parents before changing the names or pronouns of students.

For whatever reason, Saskatchewan’s latest use of the notwithstanding clause has led to widespread demands from left-leaning politicians and pundits to abolish this clause. However, before jumping on this bandwagon, we need to consider what this would mean.

Abolishing the notwithstanding clause would essentially give appointed judges the final say over contentious issues. If a court rules that a law is unconstitutional, Canadians would have no recourse, no matter what happens in an election.

Lest anyone doubt the ability of judges to make questionable decisions, look at what just came down from the Ontario Court of Appeal. Three judges recently declared that the minimum 12-month sentence for offenders who sexually abuse or assault a minor violates section 12 of the Charter and is therefore unconstitutional.

Section 12 of the Charter states “Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.” In other words, the Ontario Court of Appeal believes that it is cruel and unusual punishment to require people who sexually abuse minors to spend at least one year in jail. Does this make sense to you?

If this decision is upheld by the Supreme Court, it would mean that there would no longer be a mandatory minimum sentence for people who sexually abuse children. The only way to fix this absurdity is to invoke the notwithstanding clause.

There have been other questionable court rulings. In the 2022 R. v. Bissonnette case, the Supreme Court struck down section 745.51 of the Criminal Code which gave judges the discretion to stack periods of parole ineligibility for multiple murders. In other words, it’s now considered “cruel and unusual punishment” to tell a serial killer that he will never be eligible for parole.

We need the notwithstanding clause to protect us from judicial decisions that undermine public confidence in our legal system. It should be elected officials, not appointed judges, who make the final decision on tough social issues. This way Canadians always have the option of voting in a new government if they aren’t happy with the decisions made by the current government.

The notwithstanding clause is an important part of our constitution. Let’s keep it in place.

Michael Zwaagstra is a high school teacher and a Steinbach city councillor. He can be reached at mzwaagstra@shaw.ca.