What the feds can do right now about the notwithstanding clause

Screen Shot 2018-10-15 at 4.50.56 PMThe only way to be sure

In a previous post, I argued that unlike reservation (which allows a lieutenant governor to submit a provincial bill to the federal government for approval before granting royal assent), the federal power of disallowance (which allows the federal government to annul a provincial law within one year of the bill receiving royal assent) is not forbidden by convention. Briefly stated, the argument was as follows:

1. If disallowance was forbidden by convention in 1992, it would have been struck from the constitution in the Charlottetown Accord.
2. The Charlottetown Accord did not strike disallowance from the constitution.*
3. Disallowance was not forbidden by convention in 1992. (from 1 & 2)
4. Nothing has happened between 1992 and 2018 to indicate that a new convention has been created that would forbid the power of disallowance from being exercised.
5. There is currently no convention forbidding disallowance. (from 3 & 4)

My purpose in making this argument was simply to point out that a bit of conventional wisdom (no pun intended) on a relatively obscure part of the constitution might be mistaken. Even if convention permits disallowance, it seems as though currently prevailing political attitudes do not. Those attitudes might change in the future, just as they have in the past. But for the foreseeable future, I argued, it seems very likely that the power of disallowance will be kept behind glass.

I’ve changed my mind. The federal government should break the glass right now and declare that it will disallow any provincial law that uses the notwithstanding clause.

Following elections in Ontario and Quebec, most Canadians live under provincial governments that are prepared to use the notwithstanding clause to override constitutionally protected rights and freedoms. While it’s true that the notwithstanding clause is as much a part of the constitution as the rights and freedoms it is used to override, many Canadians have assumed that it too is to be kept behind glass. If the notwithstanding clause is to be used at all, it is certainly not to be used frivolously. The actions of the Ford and Legault governments, however, show that governments are in fact prepared to use the notwithstanding clause frivolously. To the extent that support for the notwithstanding clause remaining on the books was conditional on the understanding that it would only be used with care, that support should now be withdrawn, and any use of the notwithstanding clause should be vigorously opposed.

One way to oppose the use of the notwithstanding clause would be to withdraw one’s support from politicians that use the notwithstanding clause, and transfer one’s support to politicians that also oppose its use. Another way would be to amend the constitution so as to take this tool out of the government toolbox altogether. Unfortunately, neither of these options can deliver relief in the short term. To deliver relief in the short term, the federal government should adopt a uniform policy of disallowing any law incorporating the notwithstanding clause.

Saying that the notwithstanding clause ought to be repealed is equivalent to saying that it ought never to be used. If the notwithstanding clause ought never to be used, then there is no reason to tolerate its use at any time. Disallowance gives the federal government the ability to prevent the notwithstanding clause’s use. So if the notwithstanding clause ought to be repealed, then any use of the notwithstanding clause should be disallowed while we work towards striking it from the constitution altogether.

*Updated on November 28 2018: To clarify, the Charlottetown Accord would have removed mention of disallowance from the constitution. But the text it substituted for the provisions on disallowance provided for a de facto attenuated form of disallowance: the governor-general (acting on advice of the prime minister) could direct a lieutenant governor to withhold assent from a bill, thus preventing it from becoming law.

One thought on “What the feds can do right now about the notwithstanding clause

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