April 11, 2003

Canada's "notwithstanding clause"

Matthew Yglesias has an interesting post on the Canadian Constitution. Since his comments are not working, I want to make a couple of comments here.

First, in citing the Canadian constitution as an example of the broad range and variety of constitutional arrangements found in Anglo-American liberal democracies, Yglesias repeats a common misperception (and one that is actually shared by many Canadians). "Canada’s Constitution Act, 1982," he writes, "is quite long and is supplemented by the earlier Constitution Act, 1867 which is also long." In fact, the Constitution Act of 1982 supplements not only the Constitution Act of 1867 but also a number of other written documents and unwritten conventions which still have the force of law. These written documents include the all-important Statute of Westminster of 1931, through which Canada basically and rather quietly went from colony to nation (section 4 of which was repealed by the Act of 1982, but the rest of which is still in force), the Newfoundland Act of 1949, and many more. For more on this point, see William F. Maton's Canadian Constitutional Documents: A Legal History, which includes links to all of the relevant documents. As Maton explains,

"Unlike the majority of countries whose basic law derives from one document, Canada's basic law derives not only from a set of documents known as Constitution Acts, but also a set of unwritten laws and conventions. This comprises of all the acts passed since 1867 up to and including 1998. As a result, all constitutional documents during that time period have the force of law."

Second, while Yglesias's characterization of the "notwithstanding clause" is certainly a valid interpretation, it is by no means the only interpretation available.

The "notwithstanding clause" refers to section 33 of the Canadian Charter of Rights and Freedoms set forth in Part I of the Constitution Act of 1982. It reads as follows:

"33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or section 7 to 15 of this Charter.
(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.
(3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.
(4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1).
(5) Subsection (3) applies in respect of re-enactment made under subsection (4)"

In other words, if they are willing to pay the political price, a legislature may override (declare an Act notwithstanding) sections 2 and 7-15 of the Charter of Rights and Freedoms for a period of 5 years. "This essentially gives parliament," writes Yglesias, "the power to override the constitution by simple majority vote."

Well, yes and no. I think it is important to note that it gives a legislature the power to override a section of the constitution as that section has been interpreted by a court. A written constitution is never a straightforward and transparent document, the meaning of which is clear and self-evident to all who have a stake in its proclamations. Instead, it is subject to competing and conflicting interpretations. The question is, Who gets to have the final say in its interpretation?

The issue is not only, and perhaps not even primarily, a question of majority vote versus contitutional protection, but also a question of legislative versus judicial authority. This is not to deny that the "notwithstanding clause" raises the troubling possibility of the will of the majority trampling on the rights or interests of a minority. However, a perhaps equally troubling possibility is that of a small body of unelected judges imposing their will on a constituency that lacks any means of countering the power of the judiciary (an especially troubling possibilty, I would suggest, in the case of a court that is quite clearly divided into political/ideological factions). If you don't agree with a legislature's invocation of the nothwithstanding clause, at least you can hold them accountable for its invocation and attempt to throw them out of power at the first available opportunity (ie, at the next election). If you don't agree with a court's interpretation of a section of the constitution, your options are at best limited.

In the interminably long process through which the Constitution Act of 1982 was hammered out, critics of the Charter were quite explicit in their opposition to an American-style constitution. This is not because they were tyrants who opposed the guarantee of fundamental rights and liberties. Rather, it is because they objected to what they defined as an American notion of judicial supremacy, against which they sought to uphold what they considered the more democratic principle of parliamentary supremacy. The "notwithstanding clause" represents a compromise between an American-style constitution, with an attendant American-style principle of judicial review and judicial supremacy, and a British-style consitution (ie constitution not as one document but as many documents, acts, and unwritten conventions) with its attendant principle of parliamentary supremacy, through which acts of parliament are the supreme law of the land. Like many such compromises, it seeks to please everybody and ends by pleasing nobody.

UPDATE: The still commentless (is there no techie out there who can help him out with this?) Matthew Yglesias has a comment. He notes, quite correctly, that I had incorrectly interpreted his commentary on the "notwithstanding clause" as a kind of attack on said clause. He explains that he cited the clause as evidence of the very different forms that entirely legitimate constitutions can take. In so doing, he reveals a spirit of compromise that marks him as worthy (if, indeed, that is the term) of honorary Canadian citizenship. I disagree with his suggestion re: a referendum (imho, referenda are problematic at best). As for supermajority: given the very infrequent but nevetheless very real possibility of defeat by a vote of non-confidence, I think it's safe to assume that no legislature would invoke the notwithstanding clause without a very solid parliamentary majority.

Posted by Invisible Adjunct at April 11, 2003 03:10 PM