The Legitimacy of the Notwithstanding Clause

Margaret Somerville

Letters Editor,

National Post

January 29, 2022

Dear Editor,

Justice Minister Irwin Cotler has refused to consider using the “notwithstanding “clause in the same-sex marriage issue because, he says, “Rights are rights are rights” and we must not “cherry pick” rights. Now Andrew Coyne (Post January 30, 2005, A14) wants to do just that in relation to the provisions of the Charter, itself, when he attacks the legitimacy of the “notwithstanding” clause and hopes it will become “a constitutional dead letter.” But has the clause been the victim of bad PR, in that its use is always presented by its opponents - and it seems to have no public defenders, except Cardinal Ambrozic- as an illegitimate breaching of rights?

The first question is: What is the nature of a right under the Charter? Justice Lamer (as he then was) of the Supreme Court of Canada, explains that, from the point of view of the courts, in this way in the Slaight case (1989): “It is only if the limitation on a right or freedom is not kept within reasonable and justifiable limits that one can speak of an infringement of the Charter. The Charter does not provide an absolute guarantee of the rights and freedoms mentioned in it. What it guarantees is the right to have such rights and freedoms subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” In short, section 1, the “reasonable limits” section of the Charter, allows courts to declare that legislation that limits Charter rights is valid if it is such “as can be demonstrably justified in a free and democratic society”.

Might section 33 of the Charter (the “notwithstanding clause) perform the same function for Parliament as section 1 does for the courts, in that it allows Parliament to legislate that a law will operate notwithstanding a provision in the Charter? Under standard rules of statutory interpretation against redundancy in the provisions of any given piece of legislation, sections 1 and 33 must cover different ground. So the possibilities are either section 33 allows Parliament to second-guess the courts on what are reasonable limits, or it allows Parliament to take into account a much broader range of considerations than the courts in deciding what constitutes reasonable limits, or it does both.

The Supreme Court of Canada has pointed out on many occasions, in particular, when dealing with highly divisive social issues, that judges and courts are strictly limited to applying the law. But the decision-making about such complex social, cultural and religious issues as marriage needs to be from a much broader base than just the legal one. Factoring in these broader considerations is uniquely Parliament's obligation and privilege. Consequently, it is arguable that the precise purpose of the “notwithstanding” clause is to ensure that broader considerations than those to which courts are restricted in making their decisions can be taken into account by Parliament in making its decision. The more open-ended wording of section 33 in comparison with section 1 is consistent with such an interpretation and means Parliament may conclude differently from the courts as to the valid limits that may be placed on Charter rights. We should no more characterize Parliament as overriding Charter rights in placing such limits under section 33 than we do the courts in doing the same under section 1. (Whether limiting any such rights is ethical is a further question.)

While Parliament must always cautiously, ethically and wisely use its power under section 33, which requires it to give enormous weight to Supreme Court rulings, if the above analysis is not correct, then the judges are the ultimate law makers in our country, not Parliament. In other words, nine judges who are not chosen by Canadians as their representatives have the final power in defining the rights of Canadians, not their three hundred and one elected representatives.

Sincerely,

Margaret Somerville

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