Why the notwithstanding clause will survive, nothwithstanding the Left

The clause reasserts the British formula, but Canada’s Left champions ‘the American Way’

One of Canada’s more interesting left-wing commentators bade a public farewell last week to what has become a much pilloried institution in Canadian constitutional government. “The era of constitutional restraint,” pronounced the columnist and white collar union guru David Climenhaga, “is over.” He was referring to our constitution’s so-called “notwithstanding clause,” a provision uniquely Canadian, which was jammed at the last minute into our Constitution at the insistence of Alberta Premier Peter Lougheed and his attorney-general Merv Leitch. Its original intent was to prevent the big provinces from ruthlessly exploiting the little ones. More lately, however, threats have been made to use it for other purposes which intrigue the Right and horrify the Left.

The Left, in fact, is baffled by the clause and can’t figure out what to do about it. This was amusingly evidenced in two recent pronouncements by Mr. Climenhaga In the first, he declares in an article that the day of the clause is “over,” with the implication that it is dead, gone, never to be heard of again. “Get used to this,” he advises. But then in the same article, he goes on to present the clause as suddenly springing back to life, and he paints at length the grave damage it is threatening to inflict on Canada’s increasingly socialized paradise.

Making the clause very dangerous to the Left is the fact that its current invocation is not by one of the smaller provinces that it was initially designed to protect, but by Ontario, biggest and mightiest of them all. The new Ontario government of Doug Ford has passed a law reducing the Toronto City Council from 47 to 25 members. A judge voided the law as a violation of electoral rights, and Ford has called the Legislature into an emergency session to assert the “notwithstanding clause” and void the judge’s ruling.

Now if it had been some cowboy province like Alberta that had invoked the clause, that could be handled. But this is Canada, where Ontario does things right. Ontario denotes responsibility, respectability, uprightness, dependability. soundness. And here is the point. By invoking the clause, Ontario subtly confers all these qualities on its usage. Meanwhile the Left has spent the last 30 or more years almost frantically striving to make sure that the clause is regarded as fundamentally preposterous. And in this, the Left has up to now succeeded, or thought it had.. It assumed it had managed to somehow portray the clause as a weapon of authoritarian despotism, which must never, ever, ever be invoked except perhaps in the most critically conceivable circumstances. Its use represents “the death of democracy,” writes one commentator.

How giving elected politicians the right to overrule politically appointed judges represents a disastrous defeat for democracy is something the Left never quite explains. Usually, their faces cloud over, the eyes darken, and there’s a trace of trembling as they intone: “Do you not know that majorities impose oppression?” Is the suggestion, one wonders, that, given the chance, minorities do not impose oppression? What about all these current gay rights cases, in which people are ordered to think, act, teach and approve of forms of conduct they believe plainly immoral? Would not all this represent oppression by a minority? I think so..

None would be more surprised than the late Peter Lougheed, premier of Alberta during the negotiations that preceded the creation of the Charter of Rights and Freedoms in the early 1980s. He always had in mind the rights of a province to resist federal intrusion. However, since the charter came into force, the clause has taken on a political life of its own– perhaps more aptly described as a political paralysis. The adoption of the Charter subjected Canada to the phenomenon of “judge-made law” on a scale wildly beyond anything experienced here. Gradually, what would previously have been be regarded as outrageous denials of human rights were being actively imposed upon an increasingly bewildered public through court rulings, ironically launched in the name of “rights and freedoms.”

All this was quickly apprehended by the Left which found it could achieve through the courts a whole myriad of “reforms” that it could never hope to achieve through the ballot box. The socialist movement in Canada might win power in various provinces, but after nearly 80 years of trying it has never once been able to form a federal government. So it focused its attention instead on the machinery of government, the bureaucracy and on the law schools, which produced the lawyers, who became the judges, who wrote new laws for a brand New Canada. Small wonder that the law school at Trinity Western University became such an object of horror to them. It was Christian. We couldn’t have that, could we?

Thus the New Canada is being fashioned around us, quite apart from the electoral process. Who needs elected politicians if the appointed judges can do the job?

However for the Left what threatens this comfortable arrangement is the notwithstanding clause. In it, there resides the potential to wipe out most of what the Left sees as the great social, cultural, educational and legal “advances” made over the last 20 or so years. All it would take would be one premier like Mr. Ford, and a few acquiescent judges here and there and the Left’s whole achievement could be thrown into turmoil. Getting rid of the clause therefore becomes a primary goal of the Left, as Mr. Climenhaga’s article amply demonstrates.

However, it has an odd implication. By assigning the role of final authority to unelected judges, rather than to elected politicians, Canada endorses the American constitutional formula. In fact, the cardinal purpose of the notwithstanding clause is to restore the “Parliament First and Foremost” principle, which we inherited from the British. But now, people like Mr. Climenhaga are being forced to sing another song, “Americans know best,” he appears to declare. “Follow the Americans. Stars and Stripes Forever.” What a strange tune, to come from the Canadian Left. We had no idea they were so admiring of the American way of doing things. Every time they attack the notwithstanding clause, we should rub this into them.


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“The Time Is Now” is the third of Ted Byfield’s trilogy of booklets on the Culture War. The pivotal battleground, he says, is neither the courts nor academe. It’s the media, where an effective Christian presence is almost non-existent. He says it’s imperative that such a presence be established, and he advances a plan on how this can be done.

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Ted Byfield was founder and publisher of Alberta Report news magazine, general editor of Alberta in the Twentieth Century, a 12-volume history of the province, and general editor of The Christians: Their First Two Thousand Years, a 12-volume history of Christianity. His column on education appears in The Christians.com, a web journal. He has aslo authored three little books on modern pedagogy: Why History Matters, The Revolution Nobody Covered and most recently The Time is Now. You can order copies here.

4 thoughts on “Why the notwithstanding clause will survive, nothwithstanding the Left

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  1. Dear Mr. Byfield;

    Thank you for this article. Two questions about the use of the so-called “Notwithstanding clause”. First: could a Federal Government use the NWS clause to reinstate an old piece of legislation that had been struck down by the courts? Particularly, could the NWS be invoked to strike down the 1988 Supreme Court of Canada decision in Morgentaler et. al. v. Her Majesty the Queen and the Attorney General of Canada? Second: could a Provincial Government bring in a marriage act defining marriage as reserved as a union between a man and a woman and then protect it by using the NWS clause against activist Judges that would surely strike down this type of legislation?

    If the above questions can be answered in the affirmative then Mr. Ford may have shown the way for the electorate to reassert their will over a radical judiciary.

    God bless


    1. David,

      “could a Federal Government use the NWS clause to reinstate an old piece of legislation that had been struck down by the courts? ”

      It depends on which clause of the Charter the court used to strike down the law. The NWS clause is only applicable to ‘strike downs’ that relate to Sec 2 and Sec 7-11.

      “could a Provincial Government bring in a marriage act defining marriage as reserved as a union between a man and a woman and then protect it by using the NWS clause”

      It would seem that the answer to this is “No”. Alberta tried to do just that and the courts found that the definition of marriage is a Federal power, not a Provincial one, so the province cannot introduce such a law.


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