Ontario premier Doug Ford’s controversial use of the notwithstanding clause (section 33 of the Constitution Act 1982 – “NWC”) to override the judicial application of the rule of law, has prompted an avalanche of commentary, not all of it coherent, and very little that facilitates a constructive debate over next steps. *

In my view, the debate should focus on repeal of the notwithstanding clause. It is not sufficient to simply rebuke premier Ford and express “disappointment” in his use of the clause. This reduces the debate to how a deeply flawed provision in the Charter could somehow be restrained by defining the impossible: “exceptional circumstances” under which it could legitimately be used.

On CBC’s Cross Country Checkup on September 16, Thomas Axworthy, principal secretary to prime minister Pierre Trudeau, described how in 1982, the prime minister only very reluctantly accepted the NWC as a political compromise to bring a few recalcitrant provincial premiers onside the entrenchment of the Charter of Rights and Freedoms. Axworthy noted that the federal cabinet debated, but ultimately rejected, another option which was to put the entire constitutional amendment package without the NWC to the people in a referendum and go over the heads of the premiers to obtain popular assent.

This choice, to both include the NWC and avoid a referendum, was regrettable but was evidently considered the best option at the time. Many expressed the hope that the NWC would never be used and could eventually be repealed. Unfortunately, the possibility of repeal was made much more difficult by the adoption of an amending formula that requires only legislative votes in the federal and provincial legislatures, effectively placing constitutional change in the hands of the very governments the actions of which are subject to the Charter, and which benefit from the NWC. With no referendum mechanism, we failed to ensure that the real source of sovereignty – the people – was adequately respected in our constitutional reform process.

The danger arising from the dominance of governments in the constitutional process, as opposed to the people, was all-too-evident during the debates over the Meech Lake and Charlottetown Accords from 1987 to 1992, with which I was deeply involved. Prime Minister Brian Mulroney and the ten premiers concluded, in private, an extensive and controversial set of constitutional amendments, and proceeded to attempt to pass them through the various legislatures in accordance with the complex constitutional amending formula.

For these men, constitutional change was more about the interests of their governments, not the people of Canada. (For some background to the constitutional debates, see “No Deal”). So, although public legislative hearings were held, the prime minister and most of the signatory premiers, were prepared to ignore the deep and growing public concerns and force the amendments through.

Thanks to delays in two provincial legislatures, notably involving the premier of Newfoundland and Labrador and the lone Indigenous Manitoba MLA, Elijah Harper, the ratification process was slowed up enough to permit the Meech Lake amendments to expire in May 1990. Brian Mulroney tried again with a slightly different package of reforms in the Charlottetown Accord in October 1992. But this time he had the sense to call a consultative referendum, acknowledging that the people should have a direct say in constitutional amendments, not just our governments. When the referendum vote definitively rejected the Charlottetown Accord as unacceptably undermining the Charter and the federal-provincial balance of powers, the prime minister wisely withdrew the project.

It is interesting to note that many opponents of Meech Lake criticized Brian Mulroney, who was and still is on record as opposing the NWC, for not taking any steps to ensure the repeal of the NWC was part of his negotiations of the Meech Lake Accord with the premiers. Indeed, ironically but not unexpectedly, in the middle of the Meech Lake ratification process in 1988, premier Bourassa inserted the NWC into Bill 178 to uphold a ban on English-language signs, something that inflamed the debate over the proposed distinct society clause for Quebec even further. (The Quebec National Assembly lifted the ban in 1993).

In my view, the very limited use of the NWC in the 36 years since the enactment of the Charter demonstrates that the NWC is not required and should be repealed. The transient political compromise required to ensure the introduction of what was then the novelty of entrenched fundamental rights and freedoms is no longer needed. The Charter is now almost universally accepted as fundamental to Canadian citizenship. To leave the NWC in the constitution will simply be a temptation to other impetuous unprincipled politicians, and an unnecessary source of political conflict.

The case for repeal of the NWC is grounded on the fact that section 1 of the Charter – the reasonable limits clause – provides legislators with enough flexibility to pursue legislative goals that may involve “reasonable limits” on guaranteed rights and freedoms “prescribed by law as can be demonstrably justified in a free and democratic society.” In the years since the enactment of our Charter, our Charter has become a model for other jurisdictions, notably the new South African constitution enacted under Nelson Mandela. But to my knowledge, no other jurisdiction has ever included our notwithstanding clause. Moreover, the notwithstanding clause only applies to fundamental democratic rights, legal rights, and equality rights, and not to other Charter provisions such as mobility rights and language rights. This is illogical and creates an unacceptable hierarchy of rights.

Over the years and certainly in recent days since premier Ford’s use of the NWC, many Canadians have asked whether the NWC could be repealed. A common response, as voiced by Osgoode Hall’s Professor Allan Hutchison on CBC’s Cross Country Checkup on September 16, is that our complex constitutional amending formula makes the repeal virtually impossible: “the provinces” would never agree, “the provinces” would insist on adding more demands into the process, who wants another Meech Lake debacle, etc., etc.

Sadly, this continues to reflect the out-dated mindset that constitutional change is primarily a matter for governments, and fails to respect the ultimate source of sovereignty – the people of Canada, not their governments. I believe there is strong popular support for repealing the NWC, and if the federal government wanted to do more than simply lament premier Ford’s actions, the prime minister could initiate the repeal process. At the same time, he could offer to formally abolish the historical constitutional power of disallowance and reservation in sections 55 and 56 of the Constitution Act, 1867, which are technically still operative, despite over 50 years of non-use.

As part of the repeal process, a consultative national referendum, like the Charlottetown referendum, would be held. If the majority of voters in all provinces support repeal, the premiers and prime minister would be morally compelled to pass the necessary resolutions to amend the constitution. Even in the unlikely event that the proposal was defeated, the vigorous, open democratic debate would nevertheless have promoted free, informed and civil discussion, and strengthened our bonds of common citizenship.

Properly designed and executed consultative referenda are entirely appropriate for gauging public opinion in a constructive way, and are an important tool for strengthening our representative democracy and enhancing meaningful citizen participation, even if complex issues are involved. Unfortunately, it is all too likely that our political leaders will avoid too much inconvenient free-wheeling public debate, and will close ranks to protect their executive powers and their political bases.

Over a quarter century has now passed and the historical precedent of the Charlottetown consultative referendum remains studiously ignored. Over the same quarter century, our democratic institutions and practices have been dangerously undermined by the growing concentration of power in stronger and stronger executives – the leaders of our established political parties, and their entourages – who are increasingly able to dictate what becomes law through submissive cabinets, party caucuses, and ultimately our legislatures. The political establishment (hollow election rhetoric notwithstanding) remains ever-reluctant to diminish this extraordinary executive power, and to undertake the necessary parliamentary, party and electoral reforms.

Yet serious reforms are crucial to reverse the weakening of our democratic institutions and practices, and declining civic respect. Only in this way can we harness the populist will that is so easily expressed in our age of social media, and so easily fragmented and perverted by transactional self-interested politicians, of which Trump is only the most extreme example.

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* On September 19, 2018, the Ontario Court of Appeal stayed the lower court’s decision that the legislation to reduce the size of Toronto’s city council was unconstitutional, pending the appeal. The Ontario government then indicated that it was no longer necessary to invoke the NWC at this time. These developments do not affect the analysis and arguments set out in this blog.