The President of the Canadian Bar Association, Alberta Branch, says courts should not be seen as an obstacle. Still, by the provincial government’s pre-emptive use of the Notwithstanding Clause, that is what it feels like.
Chris Samuel says he does not think that the Notwithstanding Clause and the Canadian Charter of Rights and Freedoms should be viewed as two separate things, because the clause is part of the structure and the architecture of the charter. He explains this is because when the charter was put into place, some premiers across Canada, including then Premier of Alberta, Peter Lougheed, thought there should be a way for legislatures and parliament to ultimately have the final say in what a law was going to turn out to be.
“The Notwithstanding Clause essentially recognizes this idea that when it comes down to it, the legislature or the parliament is democratically elected and they should have final say over what a judge might rule in terms of the legality or the constitutionality of a law,” Samuel says. “The charter also has its own internal limitation on rights. The rights under the charter are not absolute. They can be set aside or overridden by a government according to Section 1 in demonstrably justified circumstances.”
He says what that means is a court can decide if the government has a reasonable justification for overriding a right or if it has overstepped.
Samuel explains that with the Alberta Government’s decision to pre-emptively invoke the clause, there has been dialogue lost. The dialogue starts with workers who can say they feel their rights have been infringed on and challenge the government’s decision if they wish; from there, the courts can decide if the government has overstepped.
“There can be a discussion and a debate that’s based on evidence, it’s based on laws, it’s based on argument,” he states. “But, when a government circumvents that process altogether, it doesn’t have that dialogue with the judicial branch. It doesn’t engage in that process. I think there is something that’s lost there.”
He says the Canadian Bar Association has strongly suggested that it is preferable to have a court weigh in on the constitutionality of the law before a government chooses to invoke the Notwithstanding clause. However, no law requires the court to weigh in before the clause is used, even though there is historic evidence that is what the premiers who put it in place, including Peter Laughed, had in mind when they supported its inclusion in the charter.
“In fact, that issue has come up to the Supreme Court of Canada in a Quebec case called Ford, and again, in that case, the Supreme Court of Canada was pretty clear that there was no requirement to have a court rule on the law first.”
In Alberta, Samuel says, historically in Alberta there have been two other times when the Notwithstanding clause was invoked, but either never became a law or the province was deemed to be outside of its jurisdiction.
The first time was in 1998, a bill was introduced that invoked the Notwithstanding clause to limit the ability of people who have undergone forced sterilization treatments to sue the provincial government. The second time was in 2000, when the government of Alberta passed a law stating that the definition of marriage was between a man and a woman, which he says was “essentially precluding the idea of same-sex marriage.” However, he says, while the law was passed in the legislature, a case was taken to the Supreme Court of Canada on whether or not the province had the jurisdiction to put that law into effect.
