“What the hell is a not-withstanding clause?” a premier said, decades ago.

DOUG FORD has the left up in arms. The freshly-elected Ontario premier is deploying the ‘notwithstanding clause’ to disrupt a judge’s decision he doesn’t like.

What’s that got to do with Alberta?

The very idea of a ‘notwithstanding clause’ was invented in our Legislature. And it was Peter Lougheed, Alberta’s premier during the tense constitutional talks of the early 1980s, who advanced the idea of inserting a notwithstanding clause in the Canadian Charter.

Yup — the ‘notwithstanding clause’ was made in Alberta. And how that came about is a fascinating story.

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MLA Milt Pahl & Lougheed during the Constitutional negotiations in Ottawa

LOUGHEED’S TEAM APPROACH

The first piece of business introduced by Lougheed’s Progressive Conservative government during the spring sitting of 1972 was an Alberta Bill of Rights (modelled on the Canadian Bill of Rightschampioned by Prime Minister John Diefenbaker).

Merv Leitch was tasked with the job of preparing Alberta’s Bill #1. The Premier trusted his Attorney General implicitly, ever since they attended law school together at the University of Alberta. He knew Merv Leitch was clever — smarter than the average university Golden Bear — the law school made him a gold medallist. Lougheed got silver.

As he prepared the legal frame for an Alberta Bill of Rights, Leitch spotted a snag. He rang up the boss.  “Premier,” he said, “we will have to provide in this Bill for a notwithstanding clause!” “What the hell is a notwithstanding clause?” Lougheed replied.

Peter Lougheed tells the rest of the story:

“Merv patiently explained to me that we needed to include a clause which allowed, if public policy dictated, for other Alberta laws to operate notwithstanding the Alberta Bill of Rights. He explained that this was required in the event that either the government wished to propose legislation contrary or at odds with the rights or freedoms contained in the Alberta Bill of Rights or a court ruled that a particular piece of Alberta legislation was invalid because it purported to authorize the abrogation or infringement of any of the rights or freedoms recognized and declared in the Alberta Bill of Rights. Thus came section 2 of the Alberta Bill of Rights.”

FRETTING ON A FUTURE

Nearly a decade later, in 1980, Premier Lougheed was in Ottawa negotiating the patriation of Canada’s Constitution. This was a big deal. Many prior attempts had failed over the decades. Negotiating a Canadian Charter of Rights and Freedoms would be tricky with the premier’s fractious provincial counterparts and Prime Minister Pierre Trudeau.

Prairie premiers were particularly nervous about judge-made laws. Merv Leitch again took Premier Lougheed aside, and whispered in his ear: Why not a notwithstanding clause in the Canadian Charter, similar to what we have in Alberta’s Bill of Rights?

It worked.

Trudeau (the elder) got his Charter of Rights and the prairie premiers got the Alberta Amending Formula bundled with the notwithstanding clause.

During the summer, Don Hill and I learned how wary Lougheed’s government was of a transfer of power to an unelected bench.

Jim HorsmanJim Horsman, a lawyer, and Alberta cabinet minister told us what was happening behind the scenes:

 “There was grave concern on the part of many of the provinces, including Alberta, that it would undermine the decision-making of elected people, and place more power in the hands of the appointed people, namely the nine justices of the Supreme Court of Canada….

“And so I was in all of those discussions back and forth that went on over the period of time we were there [in Ottawa]. And I sat in the room and listened to the discussions and the heated discussions that took place…the introduction of the notwithstanding clause…how to prevent the usurpation of decision making by the elected, by the appointed people, over and above that of the elected people. Still, in my view a very touchy issue.”  — JIM HORSMAN, June 2018

MEANWHILE: BACK IN FORD NATION

You might be a bit unnerved by the political games unfolding ‘back east’.

An Ontario Superior Court judge denied Doug Ford the ‘legal’ right to unilaterally change the size of Toronto’s city council, shrinking it almost by half. The premier’s response (more or less): I’m the elected guy — judges won’t be making law on my watch.

Ford_gotta problemFord intends to push the notwithstanding button.

“He’s the judge, I’m the Premier. He gets to use his tools. I’ll use every single tool to stand up for the people of Ontario.”  — DOUG FORD, 10 September 2018

Was this what Lougheed and the other politicians envisioned?

It’s doubtful.

Here’s a revealing excerpt from the archives:

“There is little room to doubt that, when defying the Supreme Court, as well as overriding a pronounced right, a legislature should consider the importance of the right involved, the objective of the stricken legislation, the availability of other, less intrusive, means of reaching the same policy objective, and a host of other issues.”

 


One thought on ““What the hell is a not-withstanding clause?” a premier said, decades ago.

  1. The politicians love having the tough decisions being made by the courts – just think of the big moral issues; capital punishment, abortion and euthanasia. They (the politicians) sit on the fence and just blame the courts.

    The recent Trans Mountain Pipe decision came about because Parliament failed to specify what Aboriginal consultation meant; and in this vacuum jumped the activist Judiciary. Until Parliament speaks, the un-elected rule!

    Consultation, like beauty, is in the eye of the beholder.

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