Saskatchewan Premier Scott Moe’s decision to use the notwithstanding clause to defend parental rights policies for schools is sound. Although his opponents make a loud squawk, his course of action is well-founded..The 1982 constitution begins with the preamble, "Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law.”.Everything that follows is supposed to align with this foundation. Also, Canada’s roots as a British colony with governance in the Westminster tradition ensure parliamentary supremacy..In practice, however, Canadian judges have used the constitution to remold the nation in defiance of its preamble..Judges struck down the Lord’s Day Act in 1985, federal abortion laws in 1988, and granted same-sex rights in 1995. In 2015, the Supreme Court of Canada defied its own 1993 precedent to strike down a ban on euthanasia..The courts even developed the concept of “unwritten constitutional principles” while forgetting about the “supremacy of God” expressly written. Surely the principle that a child is entrusted to a parent and that God made them male and female should apply — but no..By the early 1990’s, academics such as Ted Morton were calling judges a “Court Party” of political actors. Five people composing a majority on the nine-seat Supreme Court of Canada could override hundreds of MPs, MLAs and centuries of common law. Their decisions would be permanent and their court appointment unchallenged..Alberta Premier Peter Lougheed foresaw such possibilities and proposed the notwithstanding clause later adopted in the Constitution. Section 33 allows legislatures to pass laws for five-year periods that would otherwise defy constitutionality. This mechanism is a safety valve for courts gone wild..In 1981, Alan Borovoy, general counsel to the Canadian Civil Liberties Association at the time, addressed concerns the override was susceptible to abuse by stating "political difficulty" would be a "reasonable safeguard for the Charter.” He was right..Moe will face the electorate in October 2024 and that election will show more than any judge, whether his governance aligns with the values of Saskatchewan people..While the federal justice minister argues Moe’s use of the notwithstanding clause is a “blunt instrument,” Moe argues it was court “overreach” that forced him to use it. Moe is probably right and would be indisputably correct if Canada was more like its motherland..The United Kingdom doesn’t have or need a notwithstanding clause because parliamentary supremacy over the courts has been made explicitly clear..As Wikipedia explains, “the courts have no power to declare primary legislation invalid on constitutional grounds, including on grounds of incompatibility with the European Convention on Human Rights. The Human Rights Act 1998 requires legislation to be interpreted in a way compatible with the Convention if possible, but they must nonetheless enforce any primary legislation that they cannot so interpret.”.What a game-changer that would have been for Canada. Most of the controversial legal changes in Canada, ones most contrary to traditional Canadian values, were due to human rights advocates. Find the right sympathetic judge, or appeal until you get to the Supreme Court and voila! Centuries of tradition and the will of hundreds of elected officials and millions of citizens vanishes..Five of the nine Supreme Court justices have to come from Quebec. If five of the nine turn over a law, it’s gone. At times, it seems the pile of legal gobbledygook spewed out in their decisions is just a pretense for the result they want..This clause has allowed Quebec laws to curtail the official language of English for decades. By now, barely anyone complains that such unconstitutional acts are a misused tool for egregious abuse..Yet, Moe’s opponents accuse him of this very thing for using the notwithstanding clause so an indoctrinated child under 16 can’t have a cross-sex sense of gender reinforced at school..No, there is politics all over the legal advocacy the constitution empowers and the decisions it allows. Besides all of this, the constitution itself was itself an act of political compromise..Lougheed wanted the notwithstanding clause and resource rights for provinces enshrined in the constitution. Pierre Trudeau grudgingly agreed but said in exchange he would keep powers of disallowance and reservation in the draft. These powers allow a lieutenant governor or governor general to refuse to assent to a bill. They didn’t make the final draft of the 1982 Constitution, but have never been formally revoked either..More proof of the constitution’s politics is found in Jean Chretien’s 2008 book My Years as Prime Minister. Chretien, the federal justice minister in 1982, said without the notwithstanding clause, "Canada probably wouldn't have had any Charter without it." He also wrote the clause could be useful should the courts defend hate speech or child pornography under freedom of expression provisions..Since then, prime ministers Paul Martin and Justin Trudeau have mused about eliminating this clause entirely. However, one can see politics here, too. Martin pledged to eliminate the clause in a 2006 federal debate. The younger Trudeau even claimed in ignorance abortion was a charter right, something his father explicitly denied..In 1981, Prime Minister Pierre Trudeau wrote Cardinal Gerald Carter to assure him, “the charter is absolutely neutral on the issue of abortion” and Parliament could continue to legislate on it..“Should a court decide at some future date that sections 7 or 15 do establish a right to abortion on demand, Parliament will continue to legislate on the matter by overriding the court’s decision,” the prime minister wrote..Moe isn’t doing anything new. The Brad Wall government used the notwithstanding clause in 2017 to ensure tax dollars could pay for non-Catholic students enrolled in Catholic schools. He had principle, good politics, and the populace on his side. Although Moe will face tenacious opposition on this issue, he can say the same.
