The notwithstanding clause saga brought about by the Ford government is difficult for those born and bred on Supreme Court precedent. Law students are presented with an idea of the courts as benevolent actors of the public trust, hemming in cavalier legislatures acting on the passions of citizens. The saga, though, forces us to reckon with another sort of control that can act where courts cannot: political costs imposed by the people themselves. These controls, though not the stuff of law school textbooks, are just as useful as a declaration of invalidity.
But this was not the starting point for many observers. In a society where our Supreme Court has declared itself the guardian of the Constitution, there were undoubtedly many who argued that our constitutional guardians—the courts—could somehow intervene to stop this gross abuse of power. Some put forward novel theories based on the idea espoused in Roncarelli v Duplessis that there is no such thing as untrammeled government power. On this account, even the exercise of a power expressly contemplated by the Constitution is subject to some inherent limits, perhaps imposed by the Rule of Law.
Of course, that argument sits uneasily with the idea with one part of the Constitution cannot, logically, abridge another. And although the Rule of Law is an unwritten principle of Canadian constitutional law, it should not impose requirements beyond those expressly indicated in the text of the Constitution. The notwithstanding clause is a unique creature; a constitutional power, exercisable by the legislature. A court cannot review the propriety of particular exercises of the notwithstanding clause on this logic.
The tragic fact for a constitutionalist is that there isn’t, and shouldn’t be, recourse to the courts for particularly objectionable uses of the notwithstanding clause. But this should not mean that there are not consequences for uses of the clause that are unreasoned, unjustified, or abusive—nor limits imposed by other sources on its use.
Benjamin Franklin, when asked what type of constitutional system had been created for the United States, quipped “a republic, if you can keep it.” Even in the 1770s and 80s, it was recognized by those great scientists of government that legal limits—what they called mere “parchment barriers”—were insufficient to stop all of the potential abuses that could be brought about by state power. Implicit in Franklin’s comment is some recognition that successful states—and successful Constitutions—require the deliberate will of the people bound to the document. It is useful to think about what would happen if legal limits imposed by courts ceased to exist. Political power can be checked by courts, but what happens if the politicians refuse to acquiesce to judicial power? Or, perhaps more realistically, what happens if a politician places stooges on the courts to implement her own agenda?
The only recourse is to the people who ultimately supervise the use of legislative and executive power through Parliament and the legislatures. And in this sense, the extraordinary power of the notwithstanding clause was never seen as limitless or costless. A practice built up against the use of the notwithstanding clause, because of the political costs associated with using it. Rightly so, citizens recognized that the trumping of a right is no small matter, and that only the most egregious situations could justify its use. The people levied a fine, a political cost, against the government for its use. The fine is heavy.
A government seeking to use the notwithstanding clause, if it was acting rational, would judge its policy goals against the political cost levied by the people on the use of the clause. And ultimately, the government would have to factor in the temporary nature of the use of the clause, at which time the government would be subject to a referendum by the people. A policy goal would have to be sufficiently important, and have sufficient backing, to justify these costs. One might think of it as a supermajority requirement.
This calculus basically applies to the Ford situation. As I wrote before, the Ford government’s justification of the use of the notwithstanding clause is wholly lacking. But Belobaba J’s decision was lacking, as noted by the Court of Appeal. The government evidently thought that the purported infringement of expression was small enough to bear the costs associated with the use of the notwithstanding clause. And bear the costs they did. Scores of legal scholars and ordinary citizens lambasted the government for the use of the clause. It is at least uncertain that the Ford government will do this again.
The control of the people over the use of the notwithstanding clause is not a perfect control; surely there will be instances in which people, in their passions, will overstep the bounds. But the same is true of the judiciary. The costs of judicial overreach are just as great as the costs of legislative or executive overreach. Ultimately, we are dealing with an imperfect system filled with distortions and incentives for people to act badly. The best we can hope for is a robust system of controls on bad actors. And political controls are no less useful for this purpose than legal ones.
Ultimately, the notwithstanding clause saga asks us to reintroduce ourselves to the channels of democracy lost after the Charter entered the fore. Imposing costs on the government of a political nature is a good way to control political power in instances where courts cannot act.