F.L. (Ted) Morton is a professor emeritus and an Executive Fellow at the School of Public Policy at the University of Calgary. He is also a former minister of energy and minister of finance in the government of Alberta.Back in the 1980s, one of Alberta Premier Peter Lougheed’s most important constitutional achievements was the addition of the Section 33 Notwithstanding Clause to the Charter of Rights. Fast forward to this week in Ottawa: the Carney Liberals are asking the Supreme Court to dramatically weaken this seminal provincial power. Albertans who care about our future should be paying attention. Section 33 is brief, clear, and simple. It states that both the federal parliament and every provincial legislature have the constitutional right to declare that one of their laws “shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.” The Notwithstanding power allows a legislature to exempt a law/policy from any judicial declaration of invalidity arising under the designated sections of the Charter. Its practical effect is to give elected governments rather than judges the last word when there is a disagreement over the practical meaning of a right. Lougheed clearly explained the purpose of Section 33: “We needed to have the supremacy of the legislature over the courts … we did not [want] to be in a position where public policy was being dictated or determined by non-elected people.” Pointing to the “court packing” problems associated with the US Supreme Court, Lougheed argued that the notwithstanding power provided Canada with a “system of checks and balances between the judiciary and legislators before judicial supremacy could assert itself.” He also used the examples of both Great Britain and Australia to demonstrate that it is possible to have constitutional supremacy without judicial supremacy, the rule of law without the rule of lawyers. .On the other side was Liberal Prime Minister Pierre Trudeau. For Trudeau, the most important part of his package of constitutional reforms was the Charter of Rights. Trudeau’s first version of the Charter would have given the Supreme Court an American-style judicial veto over not only federal laws but also provincial laws and policies that a majority of the nine judges deemed to violate a Charter right. These judges are all appointed by Ottawa. By 1982, seven of the nine had been appointed by Trudeau. For this very same reason, Lougheed and the other Western premiers opposed it. The Trudeau court had recently ruled against provincial resource laws in two high-profile federalism cases from Saskatchewan. The premiers thought that Trudeau’s hand-picked chief justice, Bora Laskin, had a centralist bias. They knew from experience that the text of the Constitution does not speak for itself. At the end of the day, the Constitution means what the judges say it means. In the worst-case scenario, Quebec and the Western premiers feared that the Charter of Rights could become a form of “disallowance in disguise,” a federal policy veto of provincial policies exercised by federal judges rather than by federal politicians.In Trudeau’s original draft of the Charter, there was no section 33. The Notwithstanding Clause was added only after Lougheed and the Gang of Eight provinces made it clear that they would not accept the proposed Charter without it. Hard late-night bargaining resulted in a compromise. Trudeau got his Charter. The provinces got the Notwithstanding Clause. That was the deal back in 1982. But now Carney wants to break it.Outside of Quebec, the Notwithstanding Clause was little used over the first three decades of the Charter. Quebec made extensive use of Section 33 — in part to protest the adoption of the Charter without Quebec’s consent; and in part to shield its pro-French language policies from judicial review. This included the pre-emptive use of the Notwithstanding Clause to prevent courts from even hearing cases challenging such policies. While Quebec’s pre-emptive use was often criticized, its legality was never challenged. In the last decade, however, there has been a dramatic spike in the provincial use of the Notwithstanding Clause. Section 33 has been used in ten different provincial laws since 2018 — not just by Quebec but also by Ontario, Saskatchewan, and Alberta. This resurgence has been described as part of a new “conservative provincial rights movement.”.Sensing the risk of losing the strategic value that the Supreme Court’s Charter decisions give to the federal government — i.e., disallowance in disguise — the Carney Liberals have now asked the Supreme Court to impose new restrictions on when and how a government (read: provincial government) can use the Notwithstanding Clause.In an appeal case from Quebec, the federal government has intervened to ask the Supreme Court to rule that Notwithstanding cannot be used proactively to preclude judicial review of an alleged Charter violation. Ottawa’s legal argument contradicts both the text of Section 33 and its clearly documented purpose. Ontario, Alberta, and Saskatchewan have intervened to support Quebec, since they too have used Notwithstanding to preemptively shield statutes from Charter review. Equally predictably, over 60 rights advocacy groups — a who’s who of the “Court Party” — (almost all of whom receive funding from Ottawa) have now intervened to support the federal government’s position. The Supreme Court is scheduled to hear this case in the last week of March. Cheered on by their Court Party supporters, will the nine Supremes — six of whom have been appointed by Trudeau — rule in favour of the Carney Liberals? If they do, they will have effectively amended Section 33 to mean something very different than what all the Western premiers and even the Trudeau government understood it to mean in 1982. For the Supreme Court to impose any new restrictions on the use of the Notwithstanding Clause would be precisely the abuse of judicial review that Section 33 is meant to prevent..Political commentators are predicting that an adverse ruling against Quebec and its provincial allies could “inflame separatism” and lead to a “national unity” crisis. I agree. The logic of Section 38(3) should apply to Section 33. Section 38(3) gives every province the legal right to opt out of an otherwise valid constitutional amendment if the amendment removes one of a province’s enumerated powers. Still battling the effects of Trudeau’s National Energy Policy, Lougheed had firsthand experience with Alberta’s vulnerability to central Canadian majorities. He and the other Western premiers saw Section 38(3) as an “insurance policy” for Section 92(A), another one of Lougheed’s constitutional victories, which confirms the provinces’ exclusive jurisdiction over the development and management of their natural resources. But today, the same logic applies to the Notwithstanding Clause. Section 33, like Section 92(A), is a constitutional power of each province. Why should Ottawa be allowed to do indirectly through the Supreme Court what the constitution prevents it from doing directly by a formal constitutional amendment? To her credit, Alberta Premier Danielle Smith has sent a clear message to Ottawa. Declaring that while her government “does not support the content of Quebec’s Bill 21 [it stands] shoulder to shoulder with Quebec’s constitutional right to invoke the notwithstanding clause as its government sees fit.” Smith has publicly called on Ottawa to withdraw its legal arguments against Quebec’s use of Section 33, declaring that it “risks national unity and a foundational principle of our constitution.”Peter Lougheed would be proud. He would have done the same.F.L. (Ted) Morton is professor emeritus and an Executive Fellow at the School of Public Policy at the University of Calgary. He is also a former minister of energy and minister of finance in the government of Alberta.
