Support for Charter's Notwithstanding Clause

In recent years, Canadians have endured many unacceptable rulings from appointed judges who see Canada as their private playground on which to stamp their personal views. These arrogant judges are, in fact, changing the social values and culture of our country, contrary to views of the vast majority of the public.

There is a brake mechanism available, however, to curb these zealous social engineers -- S.33 (the Notwithstanding Clause) of the Charter of Rights and Freedoms. When the provincial premiers agreed to the Charter in November, 1981, they insisted that S.33 be included in the document to enable Parliament and the provincial legislatures to set aside court judgements for 5 years (at which time they can be renewed), effectively putting the brakes on judicial activism.

Unfortunately, since that time, journalists, lawyers and civil libertarians have worked together to create the idea that there is something illegitimate about invoking S.33. The reputation of S.33 was further tarnished by the backlash generated in 1987 when Quebec used that section to override a Supreme Court of Canada ruling on Quebec's language law Bill 101. This override made Quebec a unilingual French province and among other changes, outlawed bilingual business signs with "language police" to enforce it. (This provision was later amended by the Bourassa government, to allow bilingual commercial signs as long as French was dominant.)

Happily, two of the framers of the Charter, former Alberta Conservative Premier, Peter Lougheed, and former NDP Premier of Saskatchewan, Allan Blakeney, have now come to the defence of S.33, admitting that they are apprehensive about the growth of judicial power since the Charter came into effect.

Mr. Lougheed stated:

If you are going to have a Charter of Rights, you are going to have a safety valve, it should be used when the elected legislatures believe that judge-made law is not in accordance with the citizens and I'm glad we have it.

Mr. Blakeney stated that courts are using the Charter of Rights:

... to reinforce a more liberal non-restrictive approach to lifestyle issues.

Both men affirmed that politicians should not be afraid to invoke the S.33 clause, when the courts make major mistakes, in order to assert the supremacy of elected people over that of appointed judges. Mr. Blakeney stated:

... I like the idea of the notwithstanding clause, and if legislatures used it more often, then we would develop a better sense of what the ground rules were as between legislatures and courts.

Alberta May Invoke the Notwithstanding Clause

When the Supreme Court of Canada ordered the Alberta legislature to include protection for homosexuals in its human rights legislation in the Vriend case in 1998, the Premier's office was deluged with calls requesting that he invoke the Notwithstanding Clause of the Charter. Premier Klein, never a social conservative, refused, but did promise to protect Alberta family law by constructing legal "fences" around it. The first "fence" to be built is in connection with a proposed amendment to the Alberta Domestic Relations Act, which is to give (again, on court orders) common-law couples equal status to married couples after a break up. The government's amendment specifically provides that the proposed amendment applies only to common-law couples of the opposite sex, not to same-sex couples.

There is also a court challenge before the Alberta courts, by two Calgary lesbians demanding adoption rights. Moreover, the Supreme Court of Canada has yet to hand down its decision in M v H (argued a year ago in March) in which an Ontario lesbian is demanding financial support from her ex-lover. The court's decision, of course, will apply to all of Canada.

These developments led to a Caucus meeting in Edmonton on homosexual issues on March 18th, in which it was agreed that the provincial government would invoke the Notwithstanding Clause to prevent the recognition of same-sex couples as "spouses" (legal recognition of same-sex marriages). Further, the province would enact legislation requiring a referendum to be held on whether the Notwithstanding Clause be invoked on other issues, including whether there should be an extension of rights to homosexuals. The government said it also planned to study the concept of "registered domesticated partnerships," where two people could enter into a formal contract and receive benefits if they separate or die.

The National Post, however, took a dim view of the Alberta referendum proposal. In an editorial on March 19th called "Democratic Sabotage" it stated:

... Mr. Klein's argument is ridiculous and perhaps disingenuous. While proclaiming his devotion to democracy, he wants to subject the Charter's only democratic element to a popular veto. He does not suggest that judicial re-writing of the law should have to leap over any such additional hurdle. His idea is that democracy should be used only to restrain democracy, not the imperial judiciary.

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