Cody Mallette: Notwithstanding clause was the price of the Charter. Courts must not rewrite it |
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Cody Mallette: Notwithstanding clause was the price of the Charter. Courts must not rewrite it
The 1981 constitutional compromise that gave Canada the Charter is now at risk of judicial revision in a English Montreal School Board case
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On April 17, the Charter of Rights and Freedoms turned forty-four. The same morning, Minister of Justice Sean Fraser toured the Library and Archives Preservation Centre in Gatineau, Qc., and told reporters he is considering guardrails around how Section 33 is used at the federal level. Section 33, the notwithstanding clause, allows Parliament or a provincial legislature to pass a law that operates notwithstanding certain Charter rights, for a renewable five-year term.
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Martha Jackman, a professor emeritus at the University of Ottawa specializing in constitutional law, supplied the accompanying assessment: “Every time Section 33 is invoked, that is a nail in the coffin of the Charter.” That view is drifting from the legal academy into the federal conversation, and from there into litigation now before the Supreme Court. It deserves to be taken seriously. It also rests on a misreading of how the Charter came to exist. The evidence sits a short walk from where Fraser stood.
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On Nov. 4, 1981, three men met in a kitchen pantry off the main hall of the government conference centre in Ottawa. Jean Chrétien, the federal justice minister, sat across from Roy Romanow of Saskatchewan and Roy McMurtry of Ontario. The constitutional talks had collapsed. Pierre Trudeau was preparing to go it alone. The provinces were fractured. Canada’s constitutional moment was slipping away.
What happened next is the most consequential act of constitution-making in modern Canadian history. On a lined notepad, Romanow scrawled the terms of a compromise in shorthand. The note, now housed at Library and Archives Canada, reads: “All the Charter But the 2nd Half of it… Non Obstante.” On the second page: “5 yr ‘Sunset.’”
That was Section 33, the so-called notwithstanding clause. And without it, there would have been no Charter of Rights and Freedoms.
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