Mark Carney (Trudeau Liberal Replacement) as PM

[Ron in Regina]

Still suffering from the devastating economic effects of Pierre Trudeau’s National Energy Policy, Lougheed and the other western premiers fought successfully to force Trudeau (the Elder, not the Potato) to add Section 92(A) to the new Constitution. Section 92(A) confirmed each province’s exclusive jurisdiction over the development and management of their natural resources. With first-hand experience of their political vulnerability to central Canadian majorities, the western premiers saw Section 38(3) as an insurance policy against any future attempt by Ottawa to repeal their newly acquired (92A) powers.

Like Section 92(A), Section 33 is a constitutional power of each province. Why should Ottawa be allowed to do indirectly though the Supreme Court what the Constitution prohibits it from doing directly by a formal constitutional amendment?

Hard late-night bargaining resulted in a compromise. Trudeau got his Charter. The provinces got the notwithstanding clause.

Without the “notwithstanding clause” there would be no charter. It was only agreed to if there was a “notwithstanding clause.”

Without the “notwithstanding clause” there would not have been a Charter of Rights and Freedoms in 1982…at least not in its current form…if at all.

The notwithstanding clause (Section 33 of the Charter of Rights and Freedoms) allows Parliament or provincial legislatures to temporarily override specific fundamental freedoms, legal rights, and equality rights (Sections 2, 7-15) for up to five years, shielding legislation from judicial review. It was part of the 1982 constitutional compromise.

Key details regarding Section 33 of the Charter:

• Purpose: It serves as a parliamentary override to prevent courts from striking down specific laws, acting as a "Charter override".
• Applicable Rights: It applies to fundamental freedoms (s. 2), legal rights (ss. 7-14), and equality rights (s. 15).
• Non-Applicable Rights: It cannot override democratic rights (ss. 3-5), mobility rights (s. 6), or language rights.
• Duration: A declaration is valid for only 5 years, after which it expires unless re-enacted.
• Usage: It must be explicit and can be used by provinces or the federal government, though the federal government has never used it.
• Context: Used frequently by Quebec in the 1980s, it has seen renewed interest and use by provinces like Ontario and Saskatchewan between 2018-2023.

 

[Dixie Cup]

There is an important constitutional conference going on in Ottawa this week. Haven’t heard about it? Don’t feel badly. Neither have most provincial governments who stand to lose one of the most important powers they acquired with the adoption of the Charter of Rights and Freedoms in 1982.

The provincial premiers have not been invited. There is none of the pomp and circumstance and media coverage that normally accompany constitutional conventions. No, this will all take place very quietly in the chambers of the Supreme Court, where the Mark Carney Liberals are asking the Supreme Court to effectively amend the Charter by imposing new restrictions on how provincial governments can use their Section 33 notwithstanding power.

In 1981, Trudeau’s (Senior, not Junior) original draft of the Charter had no notwithstanding clause. Section 33 was added only after eight provincial premiers — the “Gang of Eight” — made it clear that they would not accept Trudeau’s proposed Charter without it. Hard late-night bargaining resulted in a compromise. Trudeau got his Charter. The provinces got the notwithstanding clause.

Without the “notwithstanding clause” there would be no charter. It was only agreed to if there was a “notwithstanding clause.”

The premiers knew from experience that the text of the Constitution does not speak for itself. At the end of the day, the Constitution means what judges say it means. In the worst-case scenario, Quebec and the Western premiers feared that Ottawa could use the Charter as a form of “disallowance in disguise,” a federal policy veto of provincial policies exercised by federal judges rather than by federal politicians.

Sensing the risk of losing the strategic value that the Supreme Court’s Charter decisions give to the federal government — i.e., disallowance in disguise — the Carney Liberals have now asked the Supreme Court to impose new restrictions on when and how a government (read: provincial government) can use the clause.

Carney’s government is asking the Court to rule that the pre-emptive use of the notwithstanding clause is unconstitutional. Ottawa’s legal argument contradicts both the text of Section 33 and its clearly documented purpose.

That purpose was succinctly explained by former Alberta premier Peter Lougheed in 1983: “We needed to have the supremacy of the legislature over the courts. … we did not (want) to be in a position where public policy was being dictated or determined by non-elected people.”

Lougheed argued in a 1991 speech that the notwithstanding power provided Canada with a “system of checks and balances between the judiciary and legislators before judicial supremacy could assert itself.” He used the examples of both Great Britain and Australia to demonstrate that it is possible to have constitutional supremacy without judicial supremacy, the rule of law without the rule of lawyers.

That was the deal back in 1982. But now Carney wants to break it.

Ted Morton: Carney demands Supreme Court strip provinces of right to pass their own laws — National Post

The justices have no business declawing Section 33

apple.news

Starting Tuesday, after opening statements on Monday, the Supreme Court is scheduled to hear three days of legal arguments on Bill 21. Ontario, Alberta, British Columbia and Saskatchewan have intervened to support Quebec’s position: that its use of the notwithstanding clause prevents courts from even hearing a Charter challenge against Bill 21.

Forty rights advocacy groups — a who’s who of the Court Party, almost all of whom receive funding from Ottawa — have intervened to support the federal government’s position: that the notwithstanding clause cannot be used pre-emptively to prevent courts from ruling on the constitutional validity of Bill 21.

Cheered on by their Court Party supporters, will the nine Supremes — six of whom were appointed by Justin Trudeau — rule in favour of the Carney Liberals?

If they do, they will have effectively amended Section 33 to mean something very different than what Quebec, all the Western premiers and even the Trudeau government understood it to mean in 1982.

For the Supreme Court to impose any new restrictions on the use of the clause would be precisely the abuse of judicial review that Section 33 was designed to prevent.

Peter Lougheed must be rolling in his grave. What the Liberals want is complete authority over pretty much everything & they'll be well on their way if the SCOC agrees with them. Fingers crossed, they won't but I have a feeling....

 

[Ron in Regina]

Peter Lougheed must be rolling in his grave. What the Liberals want is complete authority over pretty much everything & they'll be well on their way if the SCOC agrees with them. Fingers crossed, they won't but I have a feeling....

Amending or removing a part of the Constitution generally requires the constitutional amending formula (e.g., Parliament plus seven provinces representing 50% of the population), not a Supreme Court decision, but…

…but we’ll have to wait and watch. The Supreme Court of Canada can interpret or limit the scope of the clause, but it cannot delete part of the Constitution simply because it was a condition of political agreement.

Notwithstanding Clause - Centre for Constitutional Studies

Supreme Court could change notwithstanding clause in light of Quebec's Bill 21, opponents argue — National Post

The law prohibits certain Quebec public sector workers from wearing religious symbols at work and requires them to perform their duties with their faces uncovered

apple.news

Fundamentally, the case is about whether there should be limits to a province’s power to invoke the notwithstanding clause, a cornerstone of the Charter that convinced most provinces to sign on to the document in 1982.

At the time, provinces argued that it was a necessary balance between the power of the legislature and that of courts.

Quebec, Ontario and Alberta as well as secularism groups argue that the text of the Charter sets no limits on the invocation of the notwithstanding clause, and to do so would amount to a constitutional amendment by the top court.

But the federal government argued in its written submissions that the notwithstanding clause wasn’t created with the intent of repeat invocation to the point of suspending those Charter rights indefinitely. Instead, it argued that use of the notwithstanding clause should be limited, though it left how to the court.

If accepted by Canada’s top court, the proposal could create the first ever substantive limit to the use of the increasingly popular notwithstanding clause.

But questions and comments from certain judges on Monday suggested there is skepticism on the bench that the SCC should impose any substantive limits of changes on the notwithstanding clause.

Hearings are scheduled for three hours daily over four days from Monday to Thursday, making it one of the longest cases ever heard by the SCC. It also involves over 40 appellants, respondents and intervenors, the most in the Court’s 150-year history.