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Brian Bird: We should elevate our discourse on the notwithstanding clause

Commentary

The reaction to the Ontario government’s decision to cloak legislation that would avert school closures in that province in the notwithstanding clause has once again revealed that many of us have yet to fully grapple with the underlying reasons why the clause is so contentious.

Many of us have come to adopt a stance toward the notwithstanding clause that essentially reflects our political preferences. If the clause is used to support a policy outcome we support or used by a party we endorse, the clause is a commendable tool in the legislature’s toolbox. At least for today. The next time might be a different story.

Where the clause, however, is used by our political opponents or used to protect policy outcomes with which we disagree, we might find ourselves disagreeing with that use of the clause. In those scenarios, it is not uncommon for individuals decrying a particular use of the clause to also decry its existence in our constitutional order—again, at least for today.

In fairness, some people oppose the existence of the notwithstanding clause no matter what day of the week it is. And some people generally endorse the clause. But these voices strike me as a minority compared to the crowd described above. At the very least, the perspectives of these voices tend to be drowned out by that crowd. As a result, our discourse on the merits and demerits of the notwithstanding clause is impoverished whenever it comes up for debate.

Pierre Trudeau was one of these principled voices. He opposed the clause outright and only with the greatest reluctance allowed it to be added to the Charter when it became clear that, without the clause, there would be no Charter at all. Trudeau’s opposition to the clause boiled down to a fear that it would be abused by legislatures to mute basic rights and freedoms. He worried that the clause could lead to a Canada with a hollow bill of rights.

It is unclear to me whether Trudeau envisioned legitimate uses of the clause, but it does not seem farfetched to imagine him agreeing that there could be. If a judge’s ruling on a novel Charter issue would invalidate legislation that serves a compelling interest and enjoys broad public support, I suspect Trudeau might not condemn the use of the clause to rescue that legislation—at least in certain cases. 

This is essentially what happened in Saskatchewan in 2017 when a court ruling on the legality of the province funding the attendance of non-Catholic pupils in Catholic schools would have led to massive disruption in the school system had the province not responded by invoking the clause to maintain the status quo. Where courts reach what a government considers to be a questionable result in a constitutional case or a result that conflicts with the common good, the notwithstanding clause offers governments a path to a different destination.

Even so, legislatures might deploy the notwithstanding clause in an attempt to clinch the constitutionality of legislation that is considered by many to be profoundly problematic. The case of Quebec’s Bill 21, which forbids many public servants in that province to wear religious symbols at work, effectively cordons off parts of the public square for religious citizens. Bill 21 is, in my view, a law unbecoming of a society that claims to respect human rights.

This reaction to Bill 21 is revealing with respect to the propriety of the notwithstanding clause. At the root of this reaction is a desire for laws to be fundamentally just. The clause draws so much ire, in other words, because it can be complicit in the creation of unjust laws. 

This revelation is significant and troubling, but we should resist the temptation to think that the notwithstanding clause is itself intrinsically unjust or that every use of it is automatically unjust. Our focus should be on the substance of the law and whether it respects fundamental justice.

We should also recognize that, absent the applicability of any other constitutional rules, a procedurally sound invocation of the notwithstanding clause is entirely constitutional. Setting aside the wisdom of this reality, the fact is that the notwithstanding clause is a part of our Constitution. A particular use of the clause may seem to us deeply unjust, and may in fact be deeply unjust, but that does not necessarily mean it is unconstitutional.

All of that being said, it appears that we have not sufficiently wrestled with the fact that the notwithstanding clause engages a longstanding legal and philosophical debate over whether unjust laws lack the system requirements to be considered valid laws and the related debate of whether unjust laws deserve to be obeyed.

To be clear, it seems absurd to suggest that the provincial premiers who advocated for including the clause in the Charter were interested in creating a mechanism by which they and their successors could oppress their citizens. The historical record reveals that these advocates viewed the clause as a means to retain a measure of autonomy from the courts should the courts interpret the Charter in a way that the provinces deemed unsatisfactory in relation to matters like education, health care, development of natural resources, and so forth. 

Perhaps the advocates of the clause also thought that judges are not uniquely equipped to interpret a bill of rights and that legislatures have distinct features that might aid the pursuit of this project. The proper handling of rights and freedoms in a pluralistic society is nuanced and challenging even in the easiest of cases. Maybe there is something to be said about having more rather than fewer cooks in this particular kitchen.

In the end, the debate on the notwithstanding clause may hinge on whether having a mechanism that enables the enactment of unjust laws is an acceptable risk even if the same mechanism can also be used to achieve sensible, albeit Charter-sensitive, policy outcomes. 

Pierre Trudeau emphatically believed that this was not a risk worth taking. Others disagree. Still others, myself included, have decidedly mixed feelings on the matter.

One thing is certain: controversy around the notwithstanding clause will not disappear anytime soon. The debate on the clause should be informed and thoughtful, but at times it almost has the flavour of a bar fight. We should take this debate outside and to the café across the street.

Sean Speer: No, the government is not running a tight fiscal policy

Commentary

As we await Finance Minister Chrystia Freeland’s forthcoming Fall Economic Statement, there’s a debate going on about whether the government is running a tight fiscal policy. Permit me to weigh into the debate: the answer is no. 

The case in favour depends on a set of flawed assumptions including relying on an inflated benchmark due to the massive spike in program spending during the pandemic and disregarding the pre-pandemic fiscal trendline. The real story here is that the Trudeau government significantly grew federal spending prior to the pandemic, raised it to unprecedented levels during the pandemic, and has kept them elevated in its aftermath. 

Let’s start with a definition. A tight or contractionary fiscal policy can refer to a budgetary surplus or, more generally, to lower government spending which in turn reduces aggregate demand in the economy.  

The former definition clearly doesn’t apply here. The federal government recorded a $90.2 billion deficit last year and, according to April’s budget, is projected to run a $52.8 billion this year—though the Parliamentary Budget Office anticipates that it will ultimately come in lower.

The latter definition technically applies. Program spending declined from a pandemic high of $608.5 billion in 2020-21 to $468.8 billion last year and is projected to fall further to $452.3 billion this year.

But this technical definition belies the underlying facts of the government’s fiscal policy. A major problem with the argument in favour of a tight fiscal policy is that it uses as its benchmark the unprecedented increase in program spending during the pandemic. Program spending jumped by 79.8 percent between 2019-20 and 2020-21. It’s hardly surprising therefore that spending is falling from such a historic high. 

What’s surprising is that after a nearly 80 percent year-over-year increase, it’s only decreasing by about 30 percent in the subsequent two years and then is set to resume growing again (see Figure 1). In other words, a considerable share of the pandemic-induced spike in program spending has proven to be far less temporary than it’s often characterized. 

Another way to see this is to try to forecast what would have happened to program spending were it not for the pandemic. As Figure 1 shows, during the Trudeau government’s first five years in office, program spending grew by an annual average of 6.4 percent. It’s important to note here that this level of sustained spending growth was in and of itself significant: it far outstripped key economic indicators such as real GDP growth or inflation over this period.

Figure 1. Graphic credit: Janice Nelson.

But if the government had merely kept spending growth at this rate, program spending in the current year would be $45.4 billion less than is currently projected (see Figure 2). This may provide a useful back-of-the-envelope sense of how much of the pandemic-induced spike in federal spending has persisted. 

Figure 2. Graphic credit: Janice Nelson.

The upshot is that rather than a true contraction in program spending, we’re actually seeing a level-step increase in the overall trendline that exceeds even the Trudeau government’s own pre-pandemic profligacy. Consider for instance that program spending in 2021-22 was nearly 19 percent of GDP which (excluding the extraordinary experience of 2020-21) is the highest percentage since 1982 and the fourth highest in records dating back to the mid-1960s.  

There’s also reason to believe that there are risks to the government’s own spending projections. Remember that program spending grew by an annual average of 6.4 percent in the five years prior to the pandemic. Over the five-year period between 2022-23 and 2026-27, the government is projecting program spending to grow by an average of just 1 percent. 

Notwithstanding the minister’s recent talk of restraint, it seems implausible given her government’s parliamentary agreement with the New Democrats and its own predispositions that it will be able to sustain such limited spending growth through an expected recession and the next election. 

To put it in perspective, an average growth rate of 1 percent is not much more than the spending growth in the last five years of the Harper government which the minister and other Liberals decried as “austerity” at the time. The point here isn’t about partisan hypocrisy but rather if one was betting his or her own money, the solid bet would be that program spending is only poised to grow even further in the coming years.

Which brings us back to the debate that we started with. Characterizing the Trudeau government’s fiscal policy as tight is the policy analysis equivalent of my toddler eating a lot of candy on Halloween night and then committing to eating slightly less candy thereafter and calling it a diet. Thursday’s Fall Economic Statement may be called various things but tight isn’t likely to be one of them.