Honourable senators, I rise today to respond to Bill S-218 regarding the “notwithstanding” clause.

As a journalist who covered every moment of the constitutional negotiations, I was a willing witness to history. Still, I cannot begin to recount all the intricacies. These negotiations went on for years, but in the end, former prime minister Pierre Trudeau got his Charter of Rights, and the Western premiers got a workable amending formula and the “notwithstanding” clause, or section 33, as part of the patriated Constitution. The “notwithstanding” clause was hard fought and publicly and politically negotiated and became a defining characteristic of our unique document.

But to be clear, there would be no Charter of Rights or patriated Constitution in this country without the “notwithstanding” clause.

The agreement to provide for provincial override of the courts broke the impasse on the patriation process. Even Jean Chrétien agrees: There would be no Charter without it.

This bill proposes to prohibit or limit the use by Ottawa of the “notwithstanding” clause. I believe that should remain a choice and an option for those who govern today and will tomorrow. By intervening in the courts, the government is also attempting to do through the back door what they could not negotiate fair and square in the early 1980s, and that is exactly why the “notwithstanding” clause is so key.

That was the very motivation for the clause: watching Ottawa’s increasing use of the Supreme Court and other courts, all appointed by the federal government, in order to limit and challenge provincial rights and autonomy. And the premiers — at the time — had not yet even seen the full extent of judicial activism.

While the bill refers only to the federal use of the “notwithstanding” clause, it was put forward in the context of Ottawa’s decision to intervene in the Supreme Court’s hearing on Quebec’s Bill 21. In this case, the government does not directly comment on the substance of the bill, which prohibits some public servants from wearing religious symbols at work, but they do make two key arguments attacking the legitimacy of section 33. First, even though the lifespan of the clause is limited once imposed, Ottawa is arguing that there may still be an “irreparable impairment” of a Charter right. Second, they argue that the “notwithstanding” clause cannot shield laws completely from judicial review, and they also suggest such reviews will help inform the electorate who will eventually pass judgment on the use of the clause.

But that’s the point: Governments are accountable to the electorate. Courts are not.

It is about the rights and responsibilities of those who govern us. Section 33 is not some nuclear option in the world of politics. The proponents always believed in cautious consideration and the same intense deliberation that a court would undertake when overriding a protected right or freedom. They all knew that use of the clause would cost them political capital, and they would pay a price or be rewarded for their actions by the electorate.

If Ottawa wants to renegotiate yesterday’s deal today, there is an amending formula that allows for that. Use it and do so for all to see, not hiding behind the robes.

Bill S-218 is, I believe, also designed to spark debate about the legitimacy of the “notwithstanding” clause in the minds of both judges and the public, in essence rewriting the very compromise that gave us the Charter.

The concept of a “notwithstanding” clause stands in law. When Alberta decided in 1971 to prepare a Bill of Rights, they were advised to include a “notwithstanding” clause to protect both rights and the right to govern. It could be invoked in the event that a government wanted to propose a law at odds with the rights and freedoms spelled out in the bill or if a court ruled legislation invalid because it was seen to infringe on the rights. That would then unleash debate, and the public would render its verdict on the actions of government.

When talks between Ottawa and the provinces hit an impasse, Alberta brought the idea of a “notwithstanding” clause to the constitutional table. This was a compromise to save the deal, and the push came not just from Conservative governments but also from Allan Blakeney, the long-serving NDP premier of Saskatchewan and a civil rights advocate.

The premiers were concerned by the lessons of history as well as what happens when the courts are out of step with the population, as we are seeing today in decisions by the courts on crime and punishment that are very much at odds with public sentiment. But at that time, they were looking stateside at fundamental issues, such as slavery or the introduction of the socially progressive New Deal, so politicians then had to take the lead to make important changes.

In Blakeney’s words:

We cannot be sure that a charter or bill of rights will improve respect for human rights and civil liberties. The United Kingdom has never had a written constitutional bill of rights and Canada did not have one until 1982. Neither country has been perfect . . . but comparatively . . . [the records continue] to be, as good as anywhere. The United States . . . has had a Bill of Rights since shortly after it was founded, but for 70 years this Bill of Rights coexisted with chattel slavery. So we can’t say that a country will respect human rights more just because it has rights written into [a] constitutional document.

Blakeney continues:

What we can say for sure is that any written bill of rights transfers power from voters and governments to judges. Constitutional provisions do not interpret themselves: judges do. Almost all the difficult questions can be considered as conflicts between one group’s rights and another group’s or individual’s [rights]. A written bill of rights means that more of the decisions as to whose rights will prevail . . . will be made by judges and fewer by elected politicians.

The premiers saw the “notwithstanding” clause as a safety valve against federal power and the growing influence of the federally appointed Supreme Court.

Again, here is some colourful commentary from Mr. Blakeney:

Right now, the conventional wisdom is that our splendid parliamentary system, with a wise electorate, somehow elects only fools and knaves. Fools and knaves who appoint judges who are wise. Jean Chrétien is often portrayed as a fool and a knave, except somehow the judges — most of whom he appointed — are invested with superhuman wisdom. . . . The day will come when the public will want more decision-making power back.

He went on:

So judges are members of the legal elite . . . who are then appointed by the same politicians we are supposed to be suspicious of.

The Western premiers — as well as others — felt very strongly about limits on the role of appointed courts who would not only interpret law but end up making it, without accountability. That is what motivated them from the get-go.

As Blakeney stated:

We are all in favour of treating the Constitution as a “living tree.” But I don’t think it is right for the courts to decide that they don’t like the tree we planted, dig it up and transplant another species. The speed with which the Court renounced what the politicians and, I would argue, the public, thought it meant was astounding.

The essence of government is making choices. Legislatures make laws and enforce them. They raise taxes, and they spend them. How you do that is what politics is all about.

Here is Mr. Blakeney again, and this too is from comments in 2005:

The current Prime Minister talks about how ministers of the crown . . . are creating a “democratic deficit” by usurping Parliament’s functions. . . . But isn’t it just as bad for what are, after all, just “red-robed patronage appointees of the prime minister” to usurp Parliament’s functions?

It is not my intent today to argue for or against any of the reasons provinces have invoked the “notwithstanding” clause. Your politics, your perspective, your personal circumstances or your proximity to power will dictate where you stand in each case. My point here is to argue that the negotiations resulted in a mechanism to balance competing powers, and that should stand or be changed in the political arena, not by tagging along on a court challenge mounted by someone else.

The “notwithstanding” clause has become more commonplace in Canada, no doubt. However, when Quebec uses it, there is less media scrutiny, while premiers outside Quebec often face very heavy criticism, as when Alberta invoked it to force teachers back on the job just this past fall.

There was much handwringing in the news over what Peter Lougheed would have thought about that. Lougheed did not generally favour using the “notwithstanding” clause preemptively and even criticized Saskatchewan’s use in 1986 to preempt a judicial review. But in other cases, he supported the concept. The details of the case were what mattered. The purpose was to ensure the ultimate supremacy of parliaments over the judiciary, not to prevent the court from interpreting sections of the Charter of Rights and Freedoms.

The proponents of the “notwithstanding” clause deliberately ensured that the use of the clause would invite the scrutiny needed to keep its use in check. Some do not believe that there is not enough scrutiny, not enough of a check on provincial governments, but we can’t forget that judges and courts are appointed by those in power.

Allan Blakeney made the same argument. He cited a decision regarding a ruling where the court said that the Quebec government should not stop someone from obtaining private health insurance, because this might risk life and infringe on security of the person. Blakeney argued that governments make decisions all the time that risk lives and the security of persons. Should a two-lane highway become a four-lane one? Should housing be provided for low-income people? He said:

Judges are not accountable to the public. They are not supposed to be accountable to the public: that is what judicial independence means. They make their decisions on the basis of information provided to them by the parties to a particular lawsuit. . . .

Government’s core functions, on the other hand, are to make and enforce laws, to raise taxes and spend them. You can always say that the way they do these things infringes somebody’s rights. If we have waiting lists for surgery in Quebec, then someone might die. You can say that will infringe their right to life or their security of person. But if you spend more on health care, you spend less on highway maintenance or on prisons. And guess what? Spending less on highway maintenance means someone will die. Spending less on prisons means someone will die. If you gave me $50 million to spend solely on saving lives, I certainly wouldn’t spend it on the health care system.

That was spoken by the premier of a province and the leader of a party that gave birth to Medicare.

The decision, he argued, regarding the rights under section 7 would require governments to justify in court why decisions were made. He said: “This is not a rational approach to government.”

In this chamber, we know whereof he speaks. It underlines the reality of political decision making. There are always tradeoffs. Decisions are difficult. Standing and being counted are difficult. Governing is difficult. Public policy is difficult. Leadership is difficult.

In Premier Blakeney’s words:

There will always be folks who say you can’t trust the electorate. But the whole development of democracy is predicated on the belief that the people, for all their warts, can be trusted better than any elite.

If someone needs to make a final decision, the question is who. Your choices are democracy, aristocracy or meritocracy. Fifty years ago, you could hear people go on about the merits of technocracy. What we needed was specialized experts to make the decision. The new aristocracy is to be judges. This is folly. It has never worked. Judges should measure laws and government acts against a measured standard. The fundamental decisions should be left to the public.

On that point, I couldn’t agree more. Thank you, colleagues, for your time.