A constitutional storm is brewing as Pierre Poilievre flirts with the notwithstanding clause
Poilievre's recent comments have re-ignited the ongoing debate between courts and lawmakers over who gets to have the final word in society-wide moral dilemmas like addiction, gender, crime, and sexuality.
When a justice has de facto veto power over parliamentary legislation based upon a poorly worded and highly ambiguous charter you do not have a democracy.
9th May 2024 at 7:47 am
Ken Chaddock
I am very happy to live in a country where there is a Section 33. I am 73 years old and after having witnessed the many instances of the SCoUS overriding the will of the Congress, have thought from the very beginning that the Notwithstanding clause was a piece of political genius that, as Johanna says, preserves the ultimate final say to the people via the election process.
9th May 2024 at 7:45 am
Gord Edwards
Does Section 33 allow governments to put legislation into force ‘Not withstanding the Constitution’ or ‘Not withstanding a senior lawyer’s interpretation of the Constitution’? For any debate to be productive I think you must start with that question.
I say ‘senior lawyer’ because that is what judges are. They are educated in the law, experienced in its application and – hopefully – have good judgment based on that experience. But judges are only people with the same failings we all are prone to. The recent BC Supreme Court decision rejecting limits on drug use in parks etc, and the Ontario Law Society’s ongoing requirement to have all members make DEI-faith statements to maintain their practice demonstrates that poor decisions can be made and that lawyers can become activist. The shift in position on assisted suicide cited in this essay demonstrates that a court’s interpretation can change based on the members of that court changing.
No system is immune from abuse. The Federalist Papers are a sales pitch for the proposed US Constitution. The authors detail the structure, responsibilities, and authorities of the various components of the proposed US government. A lot of ink is spilt describing the checks and balances of the system to avoid abuse. But the voter is often defined as the final arbitrator, as there is no way to craft the ‘perfect’ system of controls on government authority.
Ultimately I’m more comfortable with elected politicians having the final say on Constitutional matters than unaccountable judges. If the government of the day has truly gone overboard, vote them out next time around. The other approach is to wait a generation and hope that the next slate of judges will interpret the same question differently.
While I agree with the core principle, as usual I’d prefer Poilievre to tone down his rhetoric a bit. I think he’d be better served demonstrating a degree of humility and stressing that using Section 33 would be a major decision not made lightly. He seems to be needlessly giving his opponents material for their attacks.
9th May 2024 at 11:07 am
Ian MacRae
British Common Law, upon which our legal system is based, uses a principle of continuity. Judges should base new decisions on previous decisions.
Our current Supremes have taken law making upon themselves without consulting Canadians. They have overriden Parliament’s decisions and those of their predecessors.
I would suggest to our next PM that he have all SC decisions of the padt 10 years be reviewed for alignment with Parliament’s wishes. Those that fail the test would be explicitly reversed via the Notwithstanding clause.
Legislatures make laws, courts interpret them. Unelected judges should never make new law.
9th May 2024 at 12:30 pm
Kevin Scott
The SCC is as Left, as the USSC is right. It was a scandal how Justice Russell Brown, a conservative judge was treated, but I digress. The SCC does not govern this country, the Legislative Branch does. Every time the SCC has a chance to act, it either fails to (like in R. v. Jordan. SCC where it did not use 24(1) and 24(2) to extend the 3 year limit in certain circumstances) or goes overboard with Justice Martin and the comment on “vaginas” and “people”. It was said by my professors at the time, that the Charter gave more rights to the criminals. The US likes to imprison people and the UK is quick to imprison people. Canada simply bails people. This is rare for me to say I will gladly pay more tax, provided it is used to house , punish and re-educate these criminals.
9th May 2024 at 12:26 pm
Steven Rivette
Personally my belief is could be that since our last constitutional upheaval we have had nothing. Is that not the source of confusion. The steadfastness of certain communities actually is preventing us from having constitutional protected rights. It has a been the biggest abdication of responsibility to the people and has been an avoided issue for at least three decades. But is it not the source of our difficulties???? Issues avoided always rise for air.
9th May 2024 at 8:36 am
RJKWells
Limiting a life sentence to 25 years for the slaughter of six innocent people before one can apply for parole is an outrage; the use of Section 33 of the Charter to correct that judicial miscarriage is appropriate. Full stop.
The Constitutional storm that some fear its use will create will be end up being nothing more than a tempest in a teapot. The chattering classes will have their day before the cameras, fuming their politically correct misgivings of dread and outrage, and then life will carry on.
9th May 2024 at 8:26 am
Paul Attics
…and when the notwithstanding clause is used as a remedy for other narrow issues that are not, from your perspective, so “full stop clear”, let alone objectionable?
9th May 2024 at 8:35 am
RJKWells
This is hardly some narrow issue, Paul, and your suggestion that the use of the notwithstanding clause in this instance might lead to a cavalcade of other scores being settled by future governments is fear mongering.
In the 42 years since its inclusion in the Charter, Section 33 has never been invoked by a federal government. In this rare and exceptional circumstance, it is the right thing to do.
9th May 2024 at 9:05 am
Cathy
There needs to be better language for invocation of the notwithstanding clause for actual emergencies with higher threshold rather than for politicking. The timeframe of 5 years is excessive for emergency situations that by definition are acute or short term fixes. The consistent misuse of the notwithstanding clause which has been generally been utilized to target certain groups of people and take away rights. In. Alberta it was same sex marriage, in Quebec it was wearing religious symbols. Ontario took it another step to impose reduction of Toronto council (but same Ford govt grotesquely ballooned Premiers office which contradicts the rationale of reducing city council) and election advertising that was overturned. The Charter of Rights and Freedoms should not be used as a political weapon against its own people.
9th May 2024 at 8:14 am
J. Toogood
There’s something to be said for making s33 harder to use (federally) than a simple vote, while still keeping it as a failsafe. You’d need a constitutional amendment (a practical impossibility) to require a super-majority vote to use it, like the U.S. requires for Congress to override a presidential veto. But perhaps it would be good for the House to write such a super-majority requirement into its standing orders.
A gov’t wanting to use s33 could always pass new standing orders to relieve itself of the requirement, but that’s a tedious process, and it would create a barrier. e.g., if Doug Ford had to amend the Ontario legislature’s standing orders to use s33, I bet he wouldn’t have been so quick to do it. And if a particular court decision is genuinely a horrible affront to democracy and the proper understanding of the Charter, it shouldn’t be too hard to get multi-party agreement to overturn it (for five years).
9th May 2024 at 12:05 pm
Paul Attics
Making the sentencing of the worst crimes and inflammatory partisan attack is dubious. Using a specific heinous hate crime to rally political support is worse. Alas, it is effective. There are so many more issues that impact peoples’ lives that warrant our elected officials’ limited supply of attention and passion. Stoking division on something like this, and the LPC does this as well to be sure, is “good” politics but bad for all citizens. It certainly does not rise to the level of threatening the use of the nothwithstanding clause.
Yes, these rare crimes are the highest priority to the victims, families, friends, and communities of these crimes. They are not being discounted in my comment. Perhaps concurrent sentencing is poor policy for the worst crimes and should be reconsidered in a way that avoids Charter constraints. A quiet and sober multi-partisan group of Senators and MPs could work on this.
9th May 2024 at 8:10 am
RJKWells
“Perhaps concurrent sentencing is poor policy,” is it? I’m sure you’ll continue feeling that way, until you’ve had to feel the same pain and misery that the relatives of those murder victims have gone through (and I hope you never do).
Ask yourself what punishment is more cruel and unusual – a murderer sitting in a cell for the rest of their life, or the relatives of their victims having to sit through their countless parole applications?
A “quiet and sober” application of Section 33 will be the appropriate antidote to this judicial interpretive overreach.
9th May 2024 at 8:42 am
Paul Attics
Despite my attempt at pre-empting the “you don’t understand you unfeeling robot” reply, here it is, complete with the assertion of how I personally feel about it, apparently.
9th May 2024 at 8:54 am
A. Chezzi
As with Doug Ford, if Poilievre is PM, there will be many court challenges and taxpayers’ money wasted. The Cons hate the Charter and they will do anything to get rid of it or weaken it. We heard this when Poilievre addressed the police chiefs giving them a wink and nod to underline his meaning. Poilievre is leading us down a dangerous road. We will end up like the U S with more division and hatred. He is showing himself to be as divisive as he claims Trudeau is. With Poilievre, there will be no dialogue. No alternative point of view will be tolerated. He will put down dissent quickly. It will be four years of chaos. His simple solutions will not be affective. I can only hope that in the intervening months Canadians will see how dangerous he is.
9th May 2024 at 7:59 am
Kimmer
WRONG
9th May 2024 at 8:15 am
Dennis Thivierge
Wrong – you have no concept of notwithstanding clause. Please educate yourself before making absurd comments in public.
9th May 2024 at 11:23 am
Robert Tilden
“pp” is starting to sound more and more like his mentor ,harper , or even worse like a mini me trumper !?
9th May 2024 at 7:14 am
Amalis
Nah, he sounds pretty much exactly like most Canadians feel. Get bit with the Trump associations. There is nothing right wing about Poilievre or Canadian Conservatives, or conservatives for that matter.
9th May 2024 at 7:37 am
J. Toogood
I think a lot of people are missing an important practical wrinkle in this Poilievre-s33 debate. The answer to “who gets the final say” may well be Trudeau’s ultra-progressive Senate.
Opponents of judicial supremacy often (correctly) say that s33 is part of the Charter. But it’s equally true that the Senate is part of Parliament. There have been a few problems already with the lefty Senate that has been repeatedly told it is “independent”, but not many, because its members agree with Trudeau about nearly everything (more so even than the remaining Liberal Senators). But this Senate is going to clash, hard, with a Poilievre government.
Nowhere is this more likely than on s33. Could the progressive “independent” Senate refuse to pass a bill using s33? Constitutionally, yes, absolutely. It would violate some norms, but they’d say using s33 violates more important norms (a wrong argument IMO, but one the fancy people will enthusiastically endorse).
Now, Poilievre might relish this fight. Things like consecutive sentences are largely symbolic, and politically he might be delighted to have a crisis with an unelected Senate over a popular measure that despite his rhetoric has approximately zero practical effect. But this is a big deal for progressives, and the Senate will be itching to show its independence. It’s distinctly possible that he’ll get that fight.
9th May 2024 at 11:55 am
Gordon Divitt
Having watched with a degree of horror the US supreme court (for what it’s worth it is not capitalized in the Constitution) sinking into an ideologically driven arbiter of policy I instinctively react negatively with anything which seems to empower a court to override the elected representatives of the people
Having said that thoughtless use of the Not Withstanding clause for trivial reasons – are you listening Mr Ford – only serves to weaken the whole purpose of having a written constitution.
9th May 2024 at 11:27 am
Robert Tilden
If any of you want to read what is really important to the world and its future,, try reading “Down to Earth”, by the Guardian newspaper,, they interviewed and polled 250 scientists and climate scientist,, by the end of it you will realize that “axe the tax” is the worst thing we can do to our kids and grandkids,, “pp” does not even care about the future of his own kids
9th May 2024 at 11:23 am
Gary Oxenforth
JT probably does not even know what Section 33 is all about.He is only spouting his disapproval because DADDY put it there.
Comments (23)
When a justice has de facto veto power over parliamentary legislation based upon a poorly worded and highly ambiguous charter you do not have a democracy.
I am very happy to live in a country where there is a Section 33. I am 73 years old and after having witnessed the many instances of the SCoUS overriding the will of the Congress, have thought from the very beginning that the Notwithstanding clause was a piece of political genius that, as Johanna says, preserves the ultimate final say to the people via the election process.
Does Section 33 allow governments to put legislation into force ‘Not withstanding the Constitution’ or ‘Not withstanding a senior lawyer’s interpretation of the Constitution’? For any debate to be productive I think you must start with that question.
I say ‘senior lawyer’ because that is what judges are. They are educated in the law, experienced in its application and – hopefully – have good judgment based on that experience. But judges are only people with the same failings we all are prone to. The recent BC Supreme Court decision rejecting limits on drug use in parks etc, and the Ontario Law Society’s ongoing requirement to have all members make DEI-faith statements to maintain their practice demonstrates that poor decisions can be made and that lawyers can become activist. The shift in position on assisted suicide cited in this essay demonstrates that a court’s interpretation can change based on the members of that court changing.
No system is immune from abuse. The Federalist Papers are a sales pitch for the proposed US Constitution. The authors detail the structure, responsibilities, and authorities of the various components of the proposed US government. A lot of ink is spilt describing the checks and balances of the system to avoid abuse. But the voter is often defined as the final arbitrator, as there is no way to craft the ‘perfect’ system of controls on government authority.
Ultimately I’m more comfortable with elected politicians having the final say on Constitutional matters than unaccountable judges. If the government of the day has truly gone overboard, vote them out next time around. The other approach is to wait a generation and hope that the next slate of judges will interpret the same question differently.
While I agree with the core principle, as usual I’d prefer Poilievre to tone down his rhetoric a bit. I think he’d be better served demonstrating a degree of humility and stressing that using Section 33 would be a major decision not made lightly. He seems to be needlessly giving his opponents material for their attacks.
British Common Law, upon which our legal system is based, uses a principle of continuity. Judges should base new decisions on previous decisions.
Our current Supremes have taken law making upon themselves without consulting Canadians. They have overriden Parliament’s decisions and those of their predecessors.
I would suggest to our next PM that he have all SC decisions of the padt 10 years be reviewed for alignment with Parliament’s wishes. Those that fail the test would be explicitly reversed via the Notwithstanding clause.
Legislatures make laws, courts interpret them. Unelected judges should never make new law.
The SCC is as Left, as the USSC is right. It was a scandal how Justice Russell Brown, a conservative judge was treated, but I digress. The SCC does not govern this country, the Legislative Branch does. Every time the SCC has a chance to act, it either fails to (like in R. v. Jordan. SCC where it did not use 24(1) and 24(2) to extend the 3 year limit in certain circumstances) or goes overboard with Justice Martin and the comment on “vaginas” and “people”. It was said by my professors at the time, that the Charter gave more rights to the criminals. The US likes to imprison people and the UK is quick to imprison people. Canada simply bails people. This is rare for me to say I will gladly pay more tax, provided it is used to house , punish and re-educate these criminals.
Personally my belief is could be that since our last constitutional upheaval we have had nothing. Is that not the source of confusion. The steadfastness of certain communities actually is preventing us from having constitutional protected rights. It has a been the biggest abdication of responsibility to the people and has been an avoided issue for at least three decades. But is it not the source of our difficulties???? Issues avoided always rise for air.
Limiting a life sentence to 25 years for the slaughter of six innocent people before one can apply for parole is an outrage; the use of Section 33 of the Charter to correct that judicial miscarriage is appropriate. Full stop.
The Constitutional storm that some fear its use will create will be end up being nothing more than a tempest in a teapot. The chattering classes will have their day before the cameras, fuming their politically correct misgivings of dread and outrage, and then life will carry on.
…and when the notwithstanding clause is used as a remedy for other narrow issues that are not, from your perspective, so “full stop clear”, let alone objectionable?
This is hardly some narrow issue, Paul, and your suggestion that the use of the notwithstanding clause in this instance might lead to a cavalcade of other scores being settled by future governments is fear mongering.
In the 42 years since its inclusion in the Charter, Section 33 has never been invoked by a federal government. In this rare and exceptional circumstance, it is the right thing to do.
There needs to be better language for invocation of the notwithstanding clause for actual emergencies with higher threshold rather than for politicking. The timeframe of 5 years is excessive for emergency situations that by definition are acute or short term fixes. The consistent misuse of the notwithstanding clause which has been generally been utilized to target certain groups of people and take away rights. In. Alberta it was same sex marriage, in Quebec it was wearing religious symbols. Ontario took it another step to impose reduction of Toronto council (but same Ford govt grotesquely ballooned Premiers office which contradicts the rationale of reducing city council) and election advertising that was overturned. The Charter of Rights and Freedoms should not be used as a political weapon against its own people.
There’s something to be said for making s33 harder to use (federally) than a simple vote, while still keeping it as a failsafe. You’d need a constitutional amendment (a practical impossibility) to require a super-majority vote to use it, like the U.S. requires for Congress to override a presidential veto. But perhaps it would be good for the House to write such a super-majority requirement into its standing orders.
A gov’t wanting to use s33 could always pass new standing orders to relieve itself of the requirement, but that’s a tedious process, and it would create a barrier. e.g., if Doug Ford had to amend the Ontario legislature’s standing orders to use s33, I bet he wouldn’t have been so quick to do it. And if a particular court decision is genuinely a horrible affront to democracy and the proper understanding of the Charter, it shouldn’t be too hard to get multi-party agreement to overturn it (for five years).
Making the sentencing of the worst crimes and inflammatory partisan attack is dubious. Using a specific heinous hate crime to rally political support is worse. Alas, it is effective. There are so many more issues that impact peoples’ lives that warrant our elected officials’ limited supply of attention and passion. Stoking division on something like this, and the LPC does this as well to be sure, is “good” politics but bad for all citizens. It certainly does not rise to the level of threatening the use of the nothwithstanding clause.
Yes, these rare crimes are the highest priority to the victims, families, friends, and communities of these crimes. They are not being discounted in my comment. Perhaps concurrent sentencing is poor policy for the worst crimes and should be reconsidered in a way that avoids Charter constraints. A quiet and sober multi-partisan group of Senators and MPs could work on this.
“Perhaps concurrent sentencing is poor policy,” is it? I’m sure you’ll continue feeling that way, until you’ve had to feel the same pain and misery that the relatives of those murder victims have gone through (and I hope you never do).
Ask yourself what punishment is more cruel and unusual – a murderer sitting in a cell for the rest of their life, or the relatives of their victims having to sit through their countless parole applications?
A “quiet and sober” application of Section 33 will be the appropriate antidote to this judicial interpretive overreach.
Despite my attempt at pre-empting the “you don’t understand you unfeeling robot” reply, here it is, complete with the assertion of how I personally feel about it, apparently.
As with Doug Ford, if Poilievre is PM, there will be many court challenges and taxpayers’ money wasted. The Cons hate the Charter and they will do anything to get rid of it or weaken it. We heard this when Poilievre addressed the police chiefs giving them a wink and nod to underline his meaning. Poilievre is leading us down a dangerous road. We will end up like the U S with more division and hatred. He is showing himself to be as divisive as he claims Trudeau is. With Poilievre, there will be no dialogue. No alternative point of view will be tolerated. He will put down dissent quickly. It will be four years of chaos. His simple solutions will not be affective. I can only hope that in the intervening months Canadians will see how dangerous he is.
WRONG
Wrong – you have no concept of notwithstanding clause. Please educate yourself before making absurd comments in public.
“pp” is starting to sound more and more like his mentor ,harper , or even worse like a mini me trumper !?
Nah, he sounds pretty much exactly like most Canadians feel. Get bit with the Trump associations. There is nothing right wing about Poilievre or Canadian Conservatives, or conservatives for that matter.
I think a lot of people are missing an important practical wrinkle in this Poilievre-s33 debate. The answer to “who gets the final say” may well be Trudeau’s ultra-progressive Senate.
Opponents of judicial supremacy often (correctly) say that s33 is part of the Charter. But it’s equally true that the Senate is part of Parliament. There have been a few problems already with the lefty Senate that has been repeatedly told it is “independent”, but not many, because its members agree with Trudeau about nearly everything (more so even than the remaining Liberal Senators). But this Senate is going to clash, hard, with a Poilievre government.
Nowhere is this more likely than on s33. Could the progressive “independent” Senate refuse to pass a bill using s33? Constitutionally, yes, absolutely. It would violate some norms, but they’d say using s33 violates more important norms (a wrong argument IMO, but one the fancy people will enthusiastically endorse).
Now, Poilievre might relish this fight. Things like consecutive sentences are largely symbolic, and politically he might be delighted to have a crisis with an unelected Senate over a popular measure that despite his rhetoric has approximately zero practical effect. But this is a big deal for progressives, and the Senate will be itching to show its independence. It’s distinctly possible that he’ll get that fight.
Having watched with a degree of horror the US supreme court (for what it’s worth it is not capitalized in the Constitution) sinking into an ideologically driven arbiter of policy I instinctively react negatively with anything which seems to empower a court to override the elected representatives of the people
Having said that thoughtless use of the Not Withstanding clause for trivial reasons – are you listening Mr Ford – only serves to weaken the whole purpose of having a written constitution.
If any of you want to read what is really important to the world and its future,, try reading “Down to Earth”, by the Guardian newspaper,, they interviewed and polled 250 scientists and climate scientist,, by the end of it you will realize that “axe the tax” is the worst thing we can do to our kids and grandkids,, “pp” does not even care about the future of his own kids
JT probably does not even know what Section 33 is all about.He is only spouting his disapproval because DADDY put it there.