Bill S-225: Constitutional Conventions and the Notwithstanding Clause
Author: Jim Young[1]
June 24, 2009
Senator Hugh Segal has made it clear that he does not suffer any phobia about using the Charter override clause (section 33) in federal legislation.[2] He has also alluded to the fact that Parliament has never invoked the notwithstanding clause, and the perception that there may be a constitutional convention that federal legislation should never override Charter rights. Nonetheless, Senator Segal’s Bill S-225[3] would preserve the requirements of the current citizenship oath “notwithstanding sections 2 and 15 of the Canadian Charter of Rights and Freedoms.”
This private member’s bill has received only minimal media attention or debate, and seems unlikely to become law. While Senator Segal’s wish to retain the citizenship oath is clear, he may also be motivated by a concern that Parliament’s ability to invoke the notwithstanding clause could calcify because of a history of non-use.
Not only has the notwithstanding clause never been invoked in federal legislation, but few parliamentarians have ever even proposed to use it. In 2003, the debate over same-sex marriage produced a rare proposal to employ the section 33 override. Bill C-450, introduced by independent MP Jim Pankiw, sought to preserve the definition of marriage as between a man and a woman, notwithstanding sections 2, 7 and 15 of the Charter. The bill died on the order paper at the dissolution of the 37th Parliament in 2004. During the next Parliament, Bill C-38, the Civil Marriage Act[4] was passed into law. Its preamble emphasized that:
… the Parliament of Canada’s commitment to uphold the right to equality without discrimination precludes the use of section 33 of the Canadian Charter of Rights and Freedoms to deny the right of couples of the same sex to equal access to marriage for civil purposes.
Federal non-use of the notwithstanding clause raises an important constitutional question: has the Parliament of Canada, in practice, forfeited its authority to use the override? Has the power to override the Charter lapsed with disuse, or has it merely atrophied? Osgoode Hall professor Jamie Cameron said in 2004:
… it is assumed, at present, that the legislatures can use the override but choose not to risk the calamitous political consequences of doing so. The longer the clause remains dormant, the more difficult it will be for legislatures to engage it against constitutionally protected rights. In due course, section 33’s impact on institutional relations could diminish to the vanishing point. Failing a more vibrant role for this provision, it may be more accurate, at some point in the future, to describe the override as a figment, rather than a feat, of the constitutional imagination.[5]
Catherine Fraser, Chief Justice of Alberta, maintains instead that “although the clause has never been invoked federally or in the vast majority of provinces, twenty-three years of a new constitution, with limited or no use of section 33, does not a constitutional convention make.”[6]
Peter Russell, professor emeritus of political science at the University of Toronto, is among those who argue that the notwithstanding clause is alive and well, and ready to be employed should Parliament consider a legislative objective more pressing than protection of a Charter right. In language similar to Senator Segal’s claim not to fear the use of the Charter override, Russell says that “maintaining a sensible attitude to the use of the Charter’s notwithstanding clause is more a matter of having brains than of having guts.”[7]
If there is no convention against the Parliament of Canada invoking the notwithstanding clause, there is still a question of whether conventions have developed to restrict how it may be used. Specifically, can section 33 be used to pre-empt judicial review, or should it only be used reactively after a court finds legislation unconstitutional? Jamie Cameron explains the concern about pre-emptive use of the override:
… though the text is indifferent on that point, [some scholars] assumed that the power was intended to serve as a corrective for improvident judicial interpretations of the Charter…. Pre-emptive overrides are problematic because the dialogue that characterizes institutional relations is eliminated when courts are silenced.[8]
Constitutional scholars remain divided on the nature and efficacy of section 33. Some suggest that it is little more than “a paper tiger … available in theory, but not used in practice.”[9] Others consider it a potent tool that Parliament should wield sensibly in its dialogue with the judiciary.
Further Reading
Jim Young, Senate Bill Would Preserve Citizenship Oath to the Monarchy, “Notwithstanding” Charter Challenges, Centre for Constitutional Studies (2 June 2009).
Notwithstanding Clause, Centre for Constitutional Studies (undated).
Peter Lougheed, Why a Notwithstanding Clause?, Points of View no. 6 (1998), Centre for Constitutional Studies.
The Honourable Mr. Justice Michel Bastarache, Section 33 and the Relationship Between the Legislatures and the Courts, Constitutional Forum Vol.14, No.3 (2005).
The Honourable Chief Justice Catherine A. Fraser, Constitutional Dialogues Between Courts and Legislatures: Can we Talk?, Constitutional Forum Vol.14, No.3 (2005).
[1] Jim Young is a student in the Faculty of Law, University of Alberta. The author’s views do not necessarily reflect those of the Management Board and staff of the Centre for Constitutional Studies.
[3] 2nd Sess., 40th Parl., 57-58 Elizabeth II, 2009.
[4] 2005, c.33, C-31.5.
[5] Jamie Cameron, “The Charter’s Legislative Override: Feat or Figment of the Constitutional Imagination” [2004] 23 Supreme Court L.R. (2d) at 140.
[6] Hon. Chief Justice Catherine A. Fraser, “Constitutional Dialogues Between Courts and Legislatures: Can we Talk?” Constitutional Forum (2005) 14:3 at 11.
[7] Peter H. Russell, “The Notwithstanding Clause: the Charter’s Homage to Parliamentary Democracy” Policy Options (February 2007) at 68.
[8] Supra note 6 at 151.
[9] Howard Leeson, “Section 33, the Notwithstanding Clause: A Paper Tiger?” Choices 6:4 (Institute for Research on Public Policy, June 2000) at 20.