Another moral panic against the Notwithstanding Clause has broken out and gripped the salons and cafes of Toronto in a repeat of the previous Panic of 2018;  Andrew Coyne outed himself yesterday as the Geraldo Rivera of this second wave.

In principle, the Notwithstanding Clause forms another useful check and balance between the legislature and judiciary. The courts can strike down some statutes or parts of statutes as unconstitutional, and then legislatures can re-enact these provisions for a renewable term of five years (at least once per parliament). Legislatures can also invoke the Notwithstanding Clause either pre-emptively to prevent litigation from happening in the first place or retroactively to re-enact a statutory provision which the courts had previously struck down.

The Notwithstanding Clause by definition means that judicial review is not absolute, and that legislatures can, in fact, question and oppose the courts under some circumstances. Lawyers (and often journalists) despise the Notwithstanding Clause precisely because it takes away power from the courts, so they often engage in this paradox of portraying the Notwithstanding Clause as an unconstitutional or illegitimate, even though it is section 33 of Part I of the Constitution Act, 1982, the penultimate section of the Charter of Rights and Freedoms itself. These lawyers, politicians, and journalists who despite the Notwithstanding Clause in principle must therefore appeal not to the written constitution but to the political constitution. They attempt to conjure up and impose non-existent political norms, or constitutional conventions, on legislatures in an attempt to undermine the Notwithstanding Clause. “Some Parts of the Constitution Are More Constitutional Than Others” delves more deeply into the nature of the Notwithstanding Clause and the psychology of those for whom this provision elicits a seething hatred.

Some public figures have bandied about with reckless abandon this week the assertion that there exists a political norm limiting the Notwithstanding Clause to a rare use of last resort which legislatures may apply only retroactively in response to judicial decisions. Yet this opinion is at variance with the facts.

Earlier this year, the Journal of Parliamentary and Political Law published a fascinating article by one Caitlin Salvino entitled, “A Tool of ‘Last Resort’: A Comprehensive Account of the Notwithstanding Clause, Political Use form 1982-2021.”[1] Salvino meticulously catalogued all substantive invocations of the Notwithstanding Clause over its first 39 years. This final count in Table 6 excludes the Levesque government’s practice of invoking the Notwithstanding Clause on every bill between 1982 and 1985 as a form of protest against Patriation itself, and it also excludes the instances where Quebec’s Parliament has renewed the application of the Notwithstanding Clause to legislation after five years. (She shows that in a separate table). As of 2021, only the legislatures of Quebec, Yukon, Alberta, Saskatchewan, New Brunswick, and Ontario have ever invoked the Notwithstanding Clause in a total of 24 substantive instances (with the aforesaid exclusions). And of those 24 invocations, fully 19 were pre-emptive and only 5 were responsive.[2] In other words, in 19 out of 24 cases, legislatures invoked the Notwithstanding Clause to prevent litigation from happening in the first place instead of responding to judicial rulings and restoring impugned provisions after the fact. Salvino also classifies 8 of the 24 instances as pertaining to labour or collective bargaining.

I would only update Salvino’s chart slightly to state that the Act respecting French, the official and common language of Quebec received Royal Assent in June 2022 (which, of course, it had not when the JPPL published this article in March 2022).

Jennings’ famous test for determining whether constitutional convention exists asks of us three questions.

1. What are the precedents?
2. Do the politicians consider themselves bound by a rule?
3. Is there a reason for the rule?

And the asserted convention against invoking the Notwithstanding Clause pre-emptively fails all three. First, the precedents clearly show that legislatures can and have invoked the Notwithstanding Clause pre-emptively, in 79% of cases over the last 39 years. Second, politicians therefore clearly do not consider themselves bound by this non-existent rule. Third – and please forgive my Clintonian parsing here – there “is” not a reason for this rule, because it does not exist, though in principle, one can understand the instinctive revulsion toward the Notwithstanding Clause from the perspective of a judicial review absolutist who believes that legislatures should either never infringe upon Charter rights or do so only as a last resort to re-enact impugned by necessary statutory provisions. (Strangely, however, this camp usually does not apply that same logic to the Reasonable Limits Clause in section 1 of the Charter, but only to the Notwithstanding Clause in section 33 of the Charter). One can make that normative argument, and many have this week, but that does not make it a constitutional convention. Given that the constitutional convention which they assert does not, in fact, exist, they would have to take their normative argument against the Notwithstanding Clause one step further by tabling a resolution for a constitutional amendment under the General Amending Procedure to modify the text of section 33 and limit the application of this provision to circumstances which they deem appropriate. This is, of course, a legitimate debate, and perhaps one that we should undertake; indeed, any elected member of any of the 10 provincial legislative assemblies and of the House of Commons and Senate could introduce such a constitutional amendment. But the argument that the Notwithstanding Clause currently includes these limitations is demonstrably false.

In fact, the Notwithstanding Clause has undergone a renaissance of late, with 6 invocations in the last 4 years alone: Saskatchewan and Ontario each applied it responsively in 2018, Quebec invoked it pre-emptively in 2019 and again 2022, New Brunswick used it pre-emptively in 2020, and Ontario employed it responsively again in 2021. Ontario seems poised to invoke it again (but pre-emptively for the first time) this week. The Notwithstanding Clause has certainly not fallen into desuetude, but its invocations remain rare considering the number of bills enacted by thirteen parliaments and legislatures in Canada each year.

Similar Posts: 

• Constitutional Amending Procedures
• The Notwithstanding Clause
• Review of Donald F. Bur’s Laws of the Constitution (October 2022)
• Tupper and Laurier Debate the Nature of Constitutional Conventions in 1896, Part II (July 2022)
• Who Decides What the Constitution Is and Says? Quebec Modifies the Text of the Constitution Act, 1867 (June 2022)
• The Strange Taboo Against Constitutional Amendment in Canada (May 2022)
• Review of Gee & Webber’s “What Is a Political Constitution?” and the Nature of Constitutional Conventions (November 2021)
• Some Thoughts on Jonathan Gould’s “Codifying Constitutional Norms” (October 2021)
• Tupper and Laurier Debate the Nature of Constitutional Conventions in 1896, Part I (April 2020)
• Lawyers Despise the Notwithstanding Clause – Which Shows Why It is Good (September 2018)
• Some Parts of the Constitution Are More Constitutional Than Others (September 2018)

Notes

[1] Caitlin Salvino, “A Tool of ‘Last Resort’: A Comprehensive Account of the Notwithstanding Clause, Political Use form 1982-2021,” Journal of Parliamentary and Political Law 16, no. 1 (March 2022): 11-82.

[2] Caitlin Salvino, “A Tool of ‘Last Resort’: A Comprehensive Account of the Notwithstanding Clause, Political Use form 1982-2021,” Journal of Parliamentary and Political Law 16, no. 1 (March 2022): 81-82.