Like The Hub?
Join our community.
Join

Joanna Baron: A constitutional storm is brewing as Pierre Poilievre flirts with the notwithstanding clause

Commentary

Asked in a scrum last week for his position on the notwithstanding clause, Conservative Leader Pierre Poilievre replied: “Justin Trudeau believes that it’s alright for there to be concurrent sentences for a mass murderer who killed six innocent Muslims. Six innocent Muslims murdered, and he gets only 25 years. I think that’s a disgrace.”

“When I’m Prime Minister, he will stay behind bars and he will only come out in a box. It will be consecutive sentences,” he added. “So it’d be six life sentences. And we’re going to we’re going to make sure that it is jail, not bail. It’s going to be hard time for hard crimes.”

With these comments, Poilievre has reignited a national debate over the purpose and legitimate uses of the notwithstanding clause. While he didn’t go so far as to explicitly say he would invoke the notwithstanding clause in this instance, he did say he would use “whatever tools the Constitution allows.” The federal government has never invoked the notwithstanding clause so any invocation is bound to be controversial.

Poilievre’s comments also brought to the surface a vigorous current debate in the legal community between a group of scholars who believe the notwithstanding clause “overrides” rights and is therefore illegitimate in most cases, and a group who believe section 33 allows legislatures to disagree with courts about the extent or content of rights and is therefore legitimate in cases where Parliament thinks the courts got it wrong or has a different interpretation. 

The comments also foreshadow a major storm that is brewing in the ongoing detente between courts and lawmakers over who gets to have the final word in society-wide moral dilemmas like addiction, gender, crime, and sexuality.

The pro-notwithstanding clause legal scholars including, for example, Geoff Sigalet of UBC Okanagan and Dwight Newman and the University of Saskatchewan see section 33 as setting up a dialogue between Parliament and the courts about the extent and content of rights. This is sometimes called the “coordinate approach” to rights protection. It maintains the principle of democratic legitimacy as foundational to our constitutional order and sees the use of the notwithstanding clause as an entirely legitimate part of the Constitution. We know from negotiations amongst provincial premiers leading up to the adoption of the Charter that excluding section 33 from its final text was a dealbreaker, particularly for the Prairie premiers, Allen Blakeney of Saskatchewan and Peter Lougheed of Alberta, who were of this view.

Under the coordinate approach, the constitutional supremacy clause in section 52, which says that any law which is contrary to the Constitution of Canada “is of no force or effect,” allows for both Parliament and the judiciary to define the scope of the meaning of constitutional rights. The rationale for this is that different branches of the state have different capacities and zones of expertise. For example, judges are best positioned to engage in legal analysis and apply precedent to specific factual scenarios before them, while Parliamentarians are representative of their constituencies and democratic preferences. 

Under this view, legislative invocation of the notwithstanding clause is less a curtailment of rights than a different balancing of rights or a different interpretation of the requirements of Charter guarantees that were drafted broadly on purpose. 

What, for example, does the right to be free from “cruel and unusual punishment” as guaranteed under section 12 of the Charter require? Surely, as a national community, there is relative consensus that this right protects against torture, deprivation of the essentials of life, and maybe even capital punishment. But what of imposing six consecutive life sentences—effectively, imprisonment for life with no reasonable prospect of parole—on Bissonnette? In R. v. Bissonnette, the Supreme Court held that such a sentence was “incompatible with human dignity.”

That’s not how most Canadians, including apparently Poilievre, see it. From his point of view, which is closer in proximity to regular Canadians, the need of the community to express its moral denunciation via a lifelong prison sentence must be counterbalanced against the abstract rigours of Charter jurisprudence conducted by a wise but sometimes out-of-touch group of elite judges. As Yuan Yi Zhu wrote in The Spectator, “Had the judges spoken to an actual member of the Canadian public, they might well have found that the average person in the street understands why a murderer can be given a 150-year sentence.”

Under the coordinate theory of section 33, Parliament gets the first crack at defining rights by promulgating laws. Courts then respond with a decision, usually prompted by a court challenge, offering analysis of the extent of the right. The legislature temporarily gets the last word because it can decide at that point whether to invoke the notwithstanding clause and let the law operate despite the court ruling. Parliament’s last word is indeed “temporary” because section 33 invocations automatically end after five years unless renewed. In that sense, it’s really voters who always get the last word.

The Supreme Court of Canada is pictured in Ottawa, on Thursday, Oct. 20, 2022. Sean Kilpatrick/The Canadian Press.

Poilievre’s proposed usage of the notwithstanding clause, then, is consonant with those scholars who see section 33 as a necessary corrective when courts get it wrong. While the Supreme Court found that consecutive life sentences for the Quebec City mosque attacker without any chance at parole violated the prohibition in section 12 of the Charter against cruel and unusual punishment, Parliamentarians may disagree with this interpretation. Many legal scholars would argue his proposal to use section 33 is a wholly legitimate way of asserting Parliament’s view of rights.

The notwithstanding clause laid dormant, at least outside of Quebec, for the first thirty-five years of the Charter’s adoption, but has come into vogue with Ontario, Saskatchewan, and New Brunswick invoking it in recent years. It’s no coincidence that this followed a shift at the Supreme Court, beginning in the early 2010s, from a posture of relative deference to Parliamentary supremacy into a sort of super-legislature that felt empowered to weigh in on highly divisive moral issues that split Canadian society.

A clear example of this is the shift from 1993’s B.C. v Rodriguez, in which a slim majority of the Supreme Court upheld a Criminal Code provision against assisted suicide, to 2013’s Carter v. Canada, which unanimously concluded that the same provision violated the right to life, liberty, and security of the person. 

We therefore may be witnessing a healthy re-balancing of the overall state system in the revivification of Parliamentary supremacy via the notwithstanding clause.

That said, while critics of the use of the notwithstanding clause are needlessly alarmist—for example allegations of authoritarianism like that made by a columnist in the Toronto Star are absurd—Poilievre would be well-advised to proceed with caution. 

Under the coordinate theory of the notwithstanding clause, it may be perfectly legitimate for Poilievre to use it to assert Parliament’s view about whether the Supreme Court got it right in saying Bissonnette deserves a chance at parole. On the other hand, using the notwithstanding clause preemptively to block judges from weighing in on whether laws are constitutional—as we’ve seen recently with Saskatchewan’s law blocking preferred pronouns of school children and Quebec’s law banning religious symbols in the public service—is far murkier and more dangerous territory. The allegations that Poilievre is acting “authoritarian” or “overriding” rights would be a lot more convincing were he to engage in regular pre-emptive invocations of section 33.

Scott Taymun: How to strengthen Canada’s state capacity

Commentary

Much has been written over the past few months on the state of the country and the sense amongst many that “everything is broken,” including the federal government itself.  From the ArriveCan mess to evidence of foreign interference in our elections to the astonishment of Canadians witnessing 30 percent mark-ups to manage “supply contracts” under our procurement system to the immigration-housing trainwreck, the calls for an “overhaul” of the system are growing louder by the day.  

As former mandarins Mel Cappe, Kevin Lynch, and Jim Mitchell recently wrote for The Hub: “an overhaul is needed for reasons manifold and obvious to most Canadians. ” The issue, in other words, “is not whether the government of Canada needs to do things differently, but how to structure the change.”

Before we debate what and how needs to be fixed, however, I would argue we need to be more precise on what is and is not working.  

Let’s start with the positive. The vast majority of the federal government is not broken and is working quite well. While many would argue the federal government has become too big, that does not take away from the fact that there are several hundred thousand dedicated public servants doing their jobs, every day, across the country and internationally, very well. As a former CBSA executive, I remain very proud of the work my colleagues at the agency do every day to keep our border running. And, the story of effective delivery of government services on the ground extends to just about every facet of government operations—from the work our intelligence service does to food inspection to policing.

So, what is not working?  

Unfortunately for those in the “Ottawa Bubble,” it is the “machine” inside the bubble itself that appears most dysfunctional. Recent policy failures, operational failures, and management failures all appear to be rooted in Ottawa not working well. In particular, results rarely match commitments and we repeatedly see issues associated with an inability—or poor ability—to design, develop, and deliver policy, program, and operational solutions to the challenges of the day in a timely, effective manner. Whether it is the failure to properly assess and plan for the downstream impact of immigration on housing or the inability to deliver just about any major project on time, in scope, and on budget, it is important to recognize that it’s not the front-line public servant that tends to over-commit and under-deliver. 

This ability to bring together the expert resources of the federal government in support of ministers to address public policy challenges is the job of our central agencies and senior civil service. If we are facing institutional, system-level challenges in the federal government’s ability to “get things done,” both the root of the problems as well as the design and implementation of solutions must necessarily implicate our central agencies.  

Within this context, the Hub’s Sean Speer and Andrew Evans recently prompted quite the debate on how to reform the federal government to improve its capacity to deliver, making the case for a “Do Tank” attached to the Prime Minister’s Office that would involve

the establishment of a National Economic Council and Domestic Policy Council comprised of relevant cabinet ministers, public servants, political staff, and possibly non-elected appointees, and supported by a dedicated PMO staff, with the mandate to strengthen policy capacity and implementation oversight on behalf of the prime minister.

Cappe, Lynch, and Mitchell critiqued the idea, noting that “it would contribute to a further centralization of the federal government and in turn undermine the principles of cabinet government and ministerial responsibility.” They further argue that if we want more effective government, the federal government needs to address five key issues:

  • Political short-termism
  • Excessive centralization in the PMO
  • Improving Government operations
  • Fixing procurement
  • Strengthening policy capacity

In reviewing this list, I found it hard to disagree with most of the various arguments and observations put forward. I also found myself asking, could the system operationalize the advice put forward, and, to the extent it tried, would it fix the core of the problems hindering effective development and delivery of key initiatives? On both of these latter questions, I remain sceptical because I am not convinced these “fixes” address the core driver of what’s not working. 

PSAC workers and supporters walk a picket line in Halifax on Monday, April 24, 2023. Darren Calabrese/The Canadian Press.

As Speer notes, “A major impediment to progress on these ideas and various others is the inherent structure of the federal government and the challenge of centralized coordination on multi-departmental initiatives”. That, there, is the crux of the core problem and a longstanding issue. I recall Jocelyn Bourgon talking to middle managers in the 1990s, noting “We are all vertically accountable and horizontally challenged.”

Yet my own experience managing big, tough files is that Ottawa does not do horizontal integration well, neither across government departments, nor agencies within the same portfolio, or even, quite frankly, across different branches of the same department. It is an inherent weakness inside the “Ottawa Bubble.” 

A related yet separate problem is that Ottawa does not prioritize well. It is rare to see a government or department focused on a discrete set of clearly defined “must-do” priorities. The net result is that the “siloes” focus on their slice of the agenda and the system as a whole gets bottlenecked, particularly within central agencies (managing cabinet, decision-making, Treasury Board authorities) as well as in enabling areas such as staffing, procurement, and IT.  

Which brings me back to the idea of a “Do Tank.” Cappe, Lynch, and Mitchell argue that (1) “under the model proposed by Speer and Evans, ministers would be sidelined, while the PM’s political staff would be enormously empowered and yet entirely unaccountable,” and (2) “strikingly absent from their desired model is almost any reference to ministers or the public service”. Another approach, which Cappe, Lynch, and Mitchell advocate, is “going back to Westminster basics and having a cabinet of strong and empowered ministers.”

I personally do not see the two lines of thinking as mutually exclusive. It is perfectly conceivable to build a “Do Tank” in the PMO (or PCO for that matter) to help catalyze integrated policy development, planning, and prioritization across the broader system, working with PCO, Treasury Board, and others within the federal government to help “focus” the system on effective development and delivery of a discrete set of government priorities.  

The work of such a “Do Tank” would be to force the “system” to work in a more integrated, timely manner to address big problems and deliver. This could include, but not be limited to:

  • Bringing internal and external stakeholders together to do initial front-end policy and planning work on options, authorities, and delivery mechanisms;
  • working with the PMO and PCO to designate lead ministers and supporting machinery;
  • working with PCO to catalyze due diligence assessments within central agencies and across supporting departments, including work on cabinet authorities, legislative authorities, costing, timing, and implementation planning; and
  • maintaining line of sight and oversight of progress against plans and intended results.

Within government, the Do Tank concept and lead ministers could further be supported by the development of SWAT teams, by priority, built on an interdepartmental basis. The intent would be to ensure that the right civil servant players were assigned to the priority to facilitate effective coordination and delivery across and within supporting departments.

In short, we need to be precise on what needs fixing and find executable ways to implement the proposed solutions. Neither “Do Tanks” in the absence of supporting machinery on the civil service side of the equation, nor a return to an era of strong cabinet ministers is likely to do the trick. What is required is to fundamentally improve the system’s ability to effectively design, develop, and implement integrated solutions to complex public policy challenges within reasonable time frames.  

Wouldn’t it be great to see a four-year initiative designed, developed, and delivered in…four years?