Notwithstanding the “notwithstanding clause”

Alison Redford has been “frightened” and “fearful” for the last 2 weeks.  The cause?  The Wildrose proposal to allow a citizen initiated referendum.   Her fear is overblown.

Before I tell you why let me be clear about one thing.  I do not support the Wildrose position on conscience rights or using a referendum to slip conscience rights into legislation, however I do not agree with Redford that all referenda are bad.

Redford’s argument is based on her belief that the Wildrose process to protect human rights—vetting the question with a federal judge to ensure it doesn’t violate the Charter of Rights and Freedoms—is a sham.

After the Leaders Debate Redford said:  “It’s important, I believe, to understand that there is no way that an issue will not be dealt by a judge favourably as long as we use the notwithstanding clause”.*  In other words, a federal judge must always allow a referendum to go ahead if the Wildrose shields the legislation by relying on the “notwithstanding clause”.

This is simply not true.

Here’s a quick constitutional law lesson:  The Charter prohibits the federal and provincial governments from passing laws that violate our rights and freedoms (which are nicely set out in the Charter).  But Section 33 of the Charter allows the feds or the provinces to pass laws which operate “notwithstanding” the protection of our rights and freedoms under the Charter.  So if a provincial statute says that it’s operational “notwithstanding” the Charter that statute can violate our rights and freedoms.  But there’s a caveat.

What Redford failed to mention is that such lawswill not stand if a court rules that the violation of our rights and freedoms is unjustified.  As a result, the “notwithstanding clause” is rarely used for two reasons (1) the burden of proof is on the province to demonstrate why the violation of these rights benefits the rest of society and (2) it’s political suicide to create legislation that violates basic human rights.

Whether a law stands or falls is determined by a court after it’s been passed.  The Wildrose safeguard goes one step further.  It requires a federal judge to determine the legal validity of the proposed law before the referendum is allowed to go ahead, not after the statute has been passed.

Only a handful of provinces have inserted the “notwithstanding clause” into a piece of legislation.  Quebec tossed it into all of its laws in a fit of spite when the Charter was enacted (it was removed when the Liberals ousted the PQ).  Saskatchewan used it once to legislate workers back to work (it turned out they didn’t need it, the legislation was not offside), the Yukon used it in a land use statute that was never proclaimed and Ralph Klein’s PC government used it in 2000 to prohibit same sex marriages.  (Another curious fact that Redford failed to mention).

Klein’s PC government enacted Bill 202 which amended the Marriage Act by defining “marriage” as a union between one man and one woman “notwithstanding” section 15 of the Charter which guarantees equal rights to all individuals.  Bill 202 passed with 32 votes in favour and 15 against.  The PCs who voted in favour of the Act to ban same sex marriages included Wayne Cao, Heather Forsyth, Ty Lund, Ed Stelmach and Gene Zwozdesky.  The PCs who voted against the Act to ban same sex marriages included Dave Hancock and Guy Boutilier.  Boutilier and Forsyth are now Wildrose MLA candidates.  See the full list of who voted for and against below.**

In 2005 the federal government passed Bill C-38 which defined marriage as a union of 2 persons.  Klein investigated creating new administrative hurdles to prevent same sex marriages but was told by legal experts that with the new federal law in place he’d lose a Charter challenge.  The Marriage Amendment Act expired and is now (thankfully) no longer law in Alberta.

Bottom line:  Notwithstanding the “notwithstanding clause” Redford has nothing to fear from a citizen initiated referendum—except the prospect of going down with the PC party at the end of its 41 year reign.      

*Global TV Post Debate Scrum:

**Votes In favour of the Marriage Amendment Act which prohibited same sex marriage:  Burgener, Cao, Coutts, Doerksen, Ducharme, Forsyth, Friedel, Haley, Havelock, Hlady, Johnson, Jonson, Klapstein, Kryczka, Langevin, Lougheed, Lund, Marz, McClellan, McFarland, Melchin, Paszkowski, Pham, Shariff, Stelmach, Strang, Tannas, Tarchuk, West, Woloshyn, Yankowsky, and Zwozdesky

Votes against the Marriage Amendment Act:  Bonner, Boutilier, Dickson, Graham, Hancock, Jacques, MacDonald, Magnus, O’Neill, Pannu, Renner, Spaers, Severtson, White, Wickman

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14 Responses to Notwithstanding the “notwithstanding clause”

  1. jillbrowne says:

    Susan, thanks for this.

    I don’t want this election to be about the narrow issue of same sex marriage, but the example is instructive. I see my floor-crossing MLA’s name in the list of people who voted against same sex marriage. This MLA was elected as a PC but is running as a Wild Rose candidate. Your example gives an indication of what lies ahead if Wild Rose should be elected: the removal of rights people now have. Maybe it will be same sex marriage, maybe it will be access to birth control, maybe something else, who knows.

    The notwithstanding clause, referenda, and judicial review are mechanisms the Wild Rose wants to use instead of making a clear policy now on contentious issues and letting people know before the election what it is their party stands for.

    I don’t particularly like the whole idea of rule by referendum. But the big question is not so much “how” but “what”: if these mechanisms are going to be used, to what end?

    I do not want leaders who make it their job to find ways they can use to take away the rights we now have. Nor have I heard the Wild Rose referendum idea coming up in any context other than a rights-limiting one.

  2. Agreed. A party should stake its position and let the voters decide. The question then becomes: what are the contentious issues? In my (humble) opinion a provincial party should have policies on public vs private healthcare, increased vs decreased environmental regulation, royalty/tax hikes, etc. It should not be resurrecting (overtly or through a referendum) issues relating to abortion, same sex marriage, the death penalty, etc. These are in the federal jurisdiction and Canadians have made their views clear.
    My worry with Redford is this: she’s trying to scare the voters into her party on the basis of inaccurate information (like this nonsense about the notwithstanding clause) instead of stating her policies clearly. She says she supports public healthcare funding, but is absolutely silent about supporting (or not) public healthcare delivery. She purports to be leading the ‘new” PCs but she re-appointed many of the old guard, including Ted Morton. Morton is a particular concern. He co-authored a book called The Charter Revolution and the Court Party. “The Court Party” in Morton’s world is a coalition of special interest groups (feminists, gay rights activists, civili libertarians) and law clerks who he argues have hi-jacked the Charter to limit the powers of the provincial governments. Here’s a link to a Globe review
    Bottom line: I don’t see a big difference between the PCs and the WR, but am concerned that many voters will vote PC out of fear of the WR and we’ll be stuck with them for another 4 years.
    Thanks for your comments Jill…insightful as ever (it’s like we’re back in law school isn’t it!)

  3. roy wright says:

    I found your clarification of the “notwithstanding” clause helpful, especially for us non-lawyers. I would assume that when lawyers such as Alison bring out legal arguments, they would be fulsome and not leave important pieces out of the discussion. This is the third time, as a non-lawyer, I feel as I have been duped by coyness by our Premier.

    The first time occurred when she said she would initiate a public inquiry for health care on queue jumping and bullying, but once elected switched that to a Health Quality Council inquiry (not the same thing as a public inquiry under the Public Inquiries Act) and limited it to queue jumping alone. The second time was when she stated she fully supports publicly funded health care. However, she never says she supports publicly delivered health care, which means she supports privately delivered health care and can continue to funnel money to private businesses (estimated to be 30% of AHC budget to date). The third one is the “notwithstanding” dance that you have so eloquently explained today.

    In my game, three strikes and you are OUT!

    • Well I’m glad that all those years of law school weren’t entirely wasted! You mentioned your assumption that as a lawyer Alison would have the decency (my word) to put the whole argument on the table. Unfortunately Alison chooses when she’s going to be a lawyer and when she’s going to be a politician. In one interview she was asked how she could campaign against the land legislation that was put in place when she was justice minister. She put on her “lawyer” hat and said that she was in Cabinet as a lawyer and the fact that she was speaking out against the legislation now indicated how she felt about it. I found that to be a very flimsy excuse. If she thought the legislation was wrong she should have fought hard against it. If she wasn’t able to persuade Stelmach of her position on a point of law she must not have been a very persuasive lawyer. I know from personal experience as in-house counsel that some clients don’t want to hear what you have to say but they’ll listen (reluctantly) if you tell them that what they plan to do is wrong at law.

      Alison will say whatever it takes to get elected. She made the promises you mentioned when running for PC leader and she’s making a bunch of promises now in the (faint) hope that she’ll be allowed to keep her job. The people of Alberta get to be the umpire on Apr 23, hopefully they’ll agree that she’s OUT!

  4. Neil Fleming, Whitemud Citizens for Public Health says:

    Hi Susan,
    I must confess that I am troubled by your relentless attacks on Redford while ignoring the dangers of the even further right wing agenda of the Wild Rose. There is a large part of me that will gain a great deal of satisfaction from seeing the end of the conservative reign of 41 years, but I am more concerned about what a WR government led by a self proclaimed libertarian will do to the social values we all hold so dear. I may be naive but I feel that Alison found herself in a no-win situation following her leadership victory. Having met the lady in person, the optimist in me wants to believe that she first has to shed all the baggage she carries with her as a result of being associated with the old party before she can begin to make change. She realized that a full scale public inquiry would be suicide for her and her party and probably was prevented from doing so by the party executive. I agree that she handled the Gary Mar situation and the “no work” committee poorly but these were events set in motion well before her leadership and beyond her control.
    Of the two women leaders, my gut feeling is that Alison is the much more trustworthy and we have a great deal more to fear from Ms. Smith and her party of untested candidates representing a questionable and regressive culture.

  5. jillbrowne says:

    Neil, I agree with you that the outcome of the PCs not winning will be a Wild Rose government and quite possibly a majority. In my constituency it is a very close two-horse race and my only reasonable choice is to strategically vote PC.
    I also agree that Alison Redford has inherited a lot of baggage. If we have a PC government with a small majority or less, perhaps the other parties can help move the PCs along a constructive path.
    If the WR win, the minority parties will have minimal influence.

  6. Neil Fleming, Whitemud Citizens for Public Health says:

    Thanks for your reply Jill. In our constituency we have a potential 4 way race so strategic voting will be difficult. Our incumbent PC is Health minister Horne, we have an upstart WR candidate with very poor credentials, a liberal who only lost by 58 votes in the last election and a very popular local activist running for the Alberta party. From my perspective the best possible outcome would be a PC minority government with the progressive parties holding the balance. This may give Alison a chance to prove herself and God forbid force the progressives to work together. We are undecided as to who has the best chance to keep the WR from winning our seat so waiting to attend some local forums. Should be interesting.

  7. Let me respond to Neil’s question–it’s a fair one–and then move on to the strategic voting points raised by Jill and Neil. I’ve focused on Redford for the same reason that Brian Mason and Raj Sherman focused on her in the debate–she hasn’t delivered on her promises and she doesn’t tell the truth (Mason nailed her on her statement in Hansard but she still denied it). While I agree that Redford isn’t responsible for 40 years of PC mismanagement, I hold her entirely responsible for failing to deliver on her pre-election promises once she became premier. She had an opportunity to create a “new” PC party, but instead of sweeping out the old boys she reinstated Liepert, Horner and Morton and gave Mar a plum job in Asia. When she appointed Horne to the health portfolio I was stunned. She may have been trying to appease the old guard but it hasn’t worked. Regardless of how the election turns out, the old guard blames her (partly unfairly) for jeopardizing the future of the party. They’ll call a leadership review and replace her with a hard-line PC like Morton who’ll be tasked with bringing back the PCs who defected to the WR.
    Redford’s use of misinformation to scare us into voting PC (the devil we know) to protect ourselves from the WR (the devil incarnate) is very troublesome. Her attacks on the AMA (the cease and desist letters to kill the AMA’s public engagement campaign and the twitter attack on the AMA for questioning the Family Care Clinic project) certainly don’t jibe with her article in the Herald which gives the impression that she’s interested in the AMA’s feedback.
    So what to do? I’m going to cast a strategic vote for the best non PC, non WR candidate in my riding and if that means a WR majority I’ll have to move to Australia for 4 years. (Sorry, that slipped out).
    This is a very interesting and difficult election and it’s important that we have these discussions. It means we care about how we’re governed. Thank you for sending in your comments, please continue to do so.
    PS I’m going to be out of town from Wed to Fri so if I don’t respond right away, please feel free to talk amongst yourselves.

  8. jillbrowne says:

    I’m very fond of Australia, and I would really enjoy your company for four years, Susan. 😉

    Thanks for keeping your flashlight on and bringing important matters to everyone’s attention. No matter who wins it is clear that post-election there will be a lot of work to do. My interests lie more in the area of the environment than elsewhere. I hope to follow your lead and get both better informed and better engaged, just as you have done, particularly with your focus on health care.

  9. Thanks Jill, I can’t wait to catch up with you over coffee to debrief what “they” did right and how “we” could have played it better (wow, that sounds a little intense, we’d better throw in some gooey cinnamon rolls as well!)

    I’m looking forward to the debut of your blog on the environment. It’s sure to be educational and entertaining. Let us know when it hits the blogosphere.

  10. Carlos Beca says:

    Well I am not sure what to make of the fact that a lawyer that apparently is even invited to South Africa in a consulting role does not understand the details of the ‘NotWithstanding Clause”. I think that it is more the fear of referendum and democracy than anything else. It is well known that control freaks are very prone to take politics as a career.

    I am 100% for referedum but like I said before with very clear rules and guidelines. These processes can be easily abused and controled by big money. Danielle Smith, who is a great supporter shows that ability clearly when she challenges the results of the Edmonton municipal airport referendum, the only one I know of since I have been here. We saw the disagreements about the question in the Quebec case and we just do not seem to be able to run them without pushing people around.

    Lots of great comments in the posts and I will have to come back. Just to much to memorize for one post. 🙂

  11. Carlos Beca says:

    Neil – I do not like Alison Redford or Danielle Smith. The first is a flip flopper and not trustworthy, the second is what she calls a libertarian, except I think she should say a convenience libertarian. So your idea of a minority PC is the most appealing to me as well.

    Susan – your comments about Alison Redford are absolutely right and she does seem like someone without great principles, that is for sure. Peter Lougheed having supported her, sounds crazy to me. Your comment about her lawyer hat versus her politician hat just completed the picture. I really do not care for her.
    As far as your comment about Australia, there are many people contemplating moving out of this province if the WR wins a majority.

  12. Carlos Beca says:

    Some good reading that is only related to Susan’s post in the fact that Danielle Smith is in the same religious/political domain.

  13. Carlos, I just read the Tyee article you sent and am flabbergasted. I’d never heard of the Christian and Missionary Alliance church. The statement that it believes that the free market is divinely inspired and that non-believers are “lost.” just boggles the mind but it certainly explains Harper and Smith’s push for free enterprise at all costs.

    Seems to me that everyone who’s been commenting on this blog is on the same page. We want to see the PCs and the WR out, The big question is whether we vote with our hearts and risk a WR majority or vote strategically for the PCs (thereby risking a PC majority government). I think both outcomes are equally bad for slightly different reasons. As a result I’ll be voting with my heart for the candidate that has the best change of winning (hence the continual references to ChangeAlberta in previous blogs). Hopefully enough of us do that to put a few of our candidates into the Legislature and they can work together to keep Alberta on an even keel. It’s a tough decision, but as my friend Phil Elder of ChangeAlberta says: we have to stay the course. Here goes!!!

    Thanks for your comments Carlos and these amazing links. Much appreciated!

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