In this election, Canadians have an opportunity to reclaim their heritage of responsible and accountable government
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By Ted Morton, Special to National Post
Published Apr 23, 2025
Last updated 13hours ago
4 minute read
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Did last week’s leaders’ debates leave you still undecided on how to vote on April 28? If so, then take a look at the very different answers that Liberal Leader Mark Carney and Conservative Leader Pierre Poilievre gave to the question about a government’s use of the notwithstanding clause.
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Poilievre made it clear that he supports Quebec’s use of the notwithstanding clause to protect the French language. He also stated that if the Conservatives form a majority government, he will invoke Section 33 to keep mass murderers in jail without parole — a policy that was struck down by the Supreme Court.
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Carney talked about the question but never answered it. After several circling comments about finding “the right balance,” he quickly exited the discussion by saying it was a “question for the Supreme Court.”
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By way of background, there would be no Charter of Rights without the notwithstanding clause. When it was being debated in the early 1980s, the only way Prime Minister Pierre Trudeau could get the provincial premiers to accept the Charter was to include Section 33.
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The debate then — and still today — is not about rights versus no rights, but who gets the final word on the meaning and scope of rights on complex issues on which reasonable people can reasonably disagree. In cases like these, where the nine judges on the Supreme Court themselves are often divided, why shouldn’t a government be able to choose the dissenting judges’ interpretation?
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The provincial demand for a notwithstanding power was also based on their desire to protect policies that fall under provincial jurisdiction. Some premiers already thought the Supreme Court — under then-chief justice Bora Laskin — had a pro-Ottawa bias in federalism cases.
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The premiers saw — correctly — that Trudeau’s Charter could further exacerbate this risk. They understood that when the Supreme Court strikes down one province’s law for an alleged Charter violation, it effectively imposes a new, one-size-fits-all rule for all 10 provinces. They feared that the Charter could facilitate a form of disallowance in disguise, a policy veto exercised by judges rather than by the federal cabinet.
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- Anthony Koch: Who's afraid of the notwithstanding clause?
- Terry Newman: Won't somebody please think of the mass murderers?
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Forty years later, these fears have been realized. In practice, the Charter means what the Supreme Court judges say it means. Over the past half century, the majority of them have been appointed by Liberal prime ministers. The Court Challenges Program funds the litigation costs of interest groups that the Liberals support, and who in turn support the Liberals. (The Harper government defunded the program, but it was resurrected by government of Prime Minister Justin Trudeau.) It’s a tidy and efficient little circle.
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The policy veto the Supreme Court gained from the Charter — disallowance in disguise — has been most aggressively used to strike down provincial policies dealing with bilingual education (Section 23). This is precisely what Pierre Trudeau intended, which is why he exempted the clause from any provincial use of the notwithstanding power.
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But judicial policymaking under the guise of legal interpretation has not stopped at the boundaries of bilingual education. The Charter winners’ circle includes almost all rights-advocacy groups promoting the new “progressive” agenda. In policies dealing with DEI, Aboriginal or climate-change issues, provincial governments that do not accede to the new woke priorities can now expect to be hauled into court by federally funded interest groups and the case decided by federally appointed judges.
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The losers in Charter politics have been the provinces, and by extension, the voters who elect provincial governments. Remember: federalism is itself a way of protecting minority rights. Each province is a minority — Quebec first and foremost because of its unique linguistic and ethnic heritage, but the other provinces, as well.
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Regional differences and diversity are being sacrificed on the altar of this new version of minority rights. This de facto “jurocracy” is eroding provincial rights and undermining Canada’s traditions of responsible government and democratic accountability.
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The beneficiaries of this new Charter jurocracy — and their allies in the law schools and the media — have worked hard to stigmatize the use of the notwithstanding power. They want judges to have the final word. (Just watch the reaction to this column!)
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But in the last five years, Section 33 has experienced something of a renaissance. It has been used not just by Quebec, but also by governments in Ontario and Saskatchewan. This may be — and I hope it is — the beginning of a renaissance for Canadian federalism. Maybe Canadians from sea to sea to sea have had enough of the Liberals’ one-size-fits-all, Ottawa-knows-best policies of the past 10 years.
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The choice between Carney or Poilievre, the Liberals or the Conservatives, gives Canadians an opportunity to reclaim their heritage of responsible and accountable government. As illustrated by our sister parliamentary democracies in the United Kingdom, Australia and New Zealand, constitutional supremacy does not require judicial supremacy; and the rule of law need not entail the rule of lawyers.
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F.L. (Ted) Morton is an executive fellow at the University of Calgary School of Public Policy. His most recent book is the fifth edition of “Law, Politics and the Judicial Process in Canada,” first published in 1984.
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