When Justice Shaina Leonard ruled last month that an Alberta independence petition couldn’t advance without indigenous consultation, Premier Danielle Smith mused about deploying the notwithstanding clause. “A single judge cannot override what 700,000 people have said they want,” she said. This latest development underscored what a legal-political hot potato the clause has become. Depending on whom you ask, it’s either a “nuclear option” or constitutional counter against “judicial autocracy.”As I outline in a new report for the Aristotle Foundation for Public Policy, the clause was intended as a protection against judicial overreach by the courts. Ironically, its future is now being decided by the Supreme Court — which will shape how federal and provincial governments use it for years to come. “Provincial governments…have turned what its drafters intended to be an emergency safety valve into a ‘dagger pointed at the heart of the Charter,” columnist Andrew Coyne recently wrote. The Clause was intended only in “non-controversial circumstances” or in the “unlikely event of a decision contrary to the public interest.”Not so. Such detractors ignore what two of the founding fathers of the Charter of Rights and Freedoms — former Saskatchewan NDP premier Allan Blakeney and former Alberta Progressive Conservative premier Peter Lougheed — actually said about it. .“We needed to have the supremacy of the legislature over the courts,” Lougheed said in 1982. “We didn’t want…public policy to be dictated or determined by non-elected people.” Blakeney said the clause was intended to ensure that the state could, for “economic or social reasons” or “because other rights were found to be more important, choose to override a Charter-protected right.” It’s a sign of desperation that provincial governments have had to resort to invoking the clause simply to make policy and pass legislation on everything from back-to-work legislation to school choice — as they contend with the increasing politicization of the Charter and the courts.“It’s thanks to the unamendable 1982 Constitution that the Courts now rule Canada,” journalist David Warren wrote in 2003. “It took them more than a decade to discover how much power [the] Charter had given them, and taken away from Parliament. Canada is going to hell in a handcart. And it’s not just any handcart. It’s the Charter of Rights, pulled by the ghost of Pierre Trudeau.” In recent months alone, judges have used the Charter’s Section 7 (“life, liberty and security of the person”) to empower child activists to take on the climate policies of the entire province of Ontario. The Section has also been used to prevent governments from dismantling homeless encampments, removing bike lanes, and closing drug consumption sites near preschools. .“Judges now interfere in matters of public policy, which creates unnecessary conflict between the courts and Parliament,” retired Supreme Court Justice John Major said recently. The late Supreme Court Justice Bora Laskin once said, “A judge has no freedom of speech to address political issues which have nothing to do with judicial duties. Abstention guarantees independence.”In contrast, current Supreme Court Chief Justice Richard Wagner publicly opined in 2022 that the Freedom Convoy amounted to “anarchy” and should be “denounced with force.” He has refused to recuse himself from presiding over the appeal of the Emergencies Act. Meanwhile, federal Justice Minister Sean Fraser is seeking to limit provinces’, or at least certain provinces’, use of the notwithstanding clause. Let’s not forget that Quebec has invoked the clause 16 times and counting — and, between 1982 and 1985, the province notwithstood every single piece of federal legislation. Where was the uproar then?“Canada is not a kritarchy,” wrote Saskatchewan Court of Appeal Justice Neal Caldwell in Saskatchewan’s recent pronoun case. “The judicial voice must not toll louder than the ballot.” We can only hope that, because it’s Quebec arguing for the notwithstanding clause at the Supreme Court — and not Alberta or Saskatchewan — justices will exercise truly sober second thought. If Quebec wins, as it usually does, it will protect the future of the clause and nothing short of parliamentary sovereignty in Canada.Hon. Bronwyn Eyre, LLB, is a Senior Fellow with the Aristotle Foundation for Public Policy, Saskatchewan’s former Minister of Justice and Attorney General, and the author of the new report, Parliamentary Sovereignty is Not a “Nuclear Option.”
