Democratizing the Notwithstanding ClauseJune 11, 2021
In a 1996 essay, “Penumbras for the People”, I advocated the adoption of a law that would permit Parliament to invoke Section 33 of the Charter of Rights (the so-called “Notwithstanding Clause“, which permits Parliament and the provincial legislatures to re-enact laws that have been struck down by the courts as being in violation of the Charter), only if its use had first been authorized in a national referendum.
(as published in: Rethinking the Constitution: Perspectives on Canadian Constitutional Reform, Interpretation and Theory, by Anthony A. Peacock, ed. Toronto: Oxford University Press, 1996)
In a follow-up article written for the National Post in 1999, “A better way of saying ‘Notwithstanding'”, I argued that this approach would empower the Canadian electorate, and “reduce the power of the courts to make arbitrary judgments as to the meaning of vaguely drafted Charter rights”.
I further argued that this democratization of the Notwithstanding Clause would provide greater clarity to Section 1 of the Charter of Rights, which permits laws to remain in effect even if they infringe on Charter-protected rights, as long as the infringements are (to use the words used in Section 1) “reasonable” and “can be demonstrably justified in a free and democratic society”. I wrote that it is difficult for judges to determine which infringements are “demonstrably justified”, and that “one can scarcely imagine a more appropriate way of demonstrably justifying what constitutes a reasonable limit on rights in a free and democratic society,” than by popular referendums.
In 1999, the Alberta Progressive Conservative government of Premier Ralph Klein introduced Bill 38, the Constitutional Referendum Amendment Act, which provided that a referendum had to have been held before the government introduced any bill that invoked Section 33, the Notwithstanding Clause. The bill passed Second Reading, but was ultimately not adopted.
Alberta’s current Referendum Act requires a referendum be held in Alberta (whether triggered by the Alberta government or under the federal Referendum Act) before the Legislative Assembly votes on a resolution authorizing an amendment to the Constitution of Canada.
British Columbia’s Constitutional Amendment Approval Act [RSBC 96, Chapter 67] similarly requires a referendum be held before a resolution is introduced in the Legislative Assembly authorizing an amendment to the Constitution of Canada.
This article in Policy Options, “Can Judicial Supremacy be stopped?”, from 2003, discusses these matters as well.