Jamie Poisson (2:30)

It's great to have you. So we'll get more into this latest Alberta case in a bit, but I think it would be helpful if we could get a little bit of a Canadian constitutional law primer here just to establish some basics. So. So I'll start by asking you, what exactly is the notwithstanding clause?

Jared Wesley (2:48)

The notwithstanding clause is a provision in the charter of Rights and freedom. So it is part of the Charter itself that allows legislatures, could be federal, parliament or provincial governments, to breach certain rights that are in the Charter, provided that they do so in a transparent way and a time limited fashion. So that's a longer definition. The shortcut is that at the time, premiers in particular from Conservative governments wanted to allow a bit of a loophole that would allow for their governments to pass legislation that respects local interests when it comes to defining human rights. And they were worried that a new, you know, a new national charter that would be adjudicated by federally appointed judges might miss those, those local interests.

Jamie Poisson (3:41)

Those sections in the, in the Charter that the notwithstanding clause can override. Sections 2 and 7 through 15. Right. What do those sections cover? What rights can the notwithstanding clause essentially be used to restrict?

Jared Wesley (3:54)

Well, it could be used to restrict just about every right in the Charter except those that, that define the right to vote and that we must have elections every so often and we must have our parliament sit every so often in official languages. Those are the only ones that are beyond the Charter's reach. But everything else from freedom of conscience and religion and thought and opinion and expression and associations, that's. That includes the right to strike or collectively bargain. But also the notwithstanding clause can be used to breach rights like the right to life, liberty and the security of person and some legal rights that you have upon arrest.

Jamie Poisson (4:29)

And you mentioned this time limit. It's five years. Right. And, and am I correct to say that there is no limit on renewals? You can just keep, you, you could just essentially keep renewing it every five years?

Jared Wesley (4:42)

Yeah. A government must receive the approval of its legislature every five years, which was built in to allow voters to weigh in every so often because we are required to have elections within every five years.

Jamie Poisson (5:06)

So you talked a little bit about why it was established in the first place back in 19. And I just, I know one guy in particular who was a big proponent of the clause was Alberta's premier at the time, Peter Lockheed.

Peter Lougheed (5:20)

Mr. Trudeau wanted the charter. We were only prepared to have the Charter with the notwithstanding clause. So hence the negotiation would have fallen apart and there would not have been a new constitution for Canada.

Jamie Poisson (5:31)

He was the one who proposed it based on a similar provision that he'd put in the Alberta Bill of Rights about a decade earlier.

Peter Lougheed (5:39)

We've never been anything other than a proponent of a charter of rights, but it had to be done in our judgment, in a way that did not affect the supremacy of the elected people. And they had to be in a position in a parliamentary system that they could respond through their elected legislature to the interpretation of what might come over the years ahead. Two decisions of the courts in interpreting a charter of rights.

Jamie Poisson (6:10)

Just can you tell me a little bit more about Peter Lougheed and why this was so important to him?

Jared Wesley (6:16)

Lougheed wasn't alone. I think he had allies in places like Manitoba, and I think their biggest worry at the time was around federal overreach. So in situations where the federal government might have passed a law that, you know, offended the sensibilities of Albertans or Manitobans, they wanted to be able to stick up for those, for those local interests. But, but, but more than anything, it was all about what they called parliamentary supremacy, this notion that parliaments or legislatures should be the ones to, to define what rights Canadians have.

Jamie Poisson (6:45)

One person who was very much against including the clause was the prime minister at the time, Pierre Trudeau. Right. And just tell me a little bit more about his concerns about including it and, and the kind of stuff that he was talking about and saying at the time.

Jared Wesley (7:00)

Well, he, he wanted a charter of rights that would apply to all Canadians across the country, regardless of where they lived. Right. And so this was a major compromise, one that he only took because there was no other choice. I mean, if you read the history on this, the premiers were willing to hold out patriot of the constitution as a whole if they didn't meet this particular demand.

Peter Lougheed (7:20)

Why did we accept the compromise? I think Professor Scott put it very well, but we wouldn't have had a charter otherwise.

Jared Wesley (7:28)

He was kind of forced back into a corner. And if he had his druthers, of course, we wouldn't have a section 33 or notwithstanding clause, we decided to have.

Peter Lougheed (7:36)

The charter in the hopes that either public opinion or evolution of the country or electoral necessity or process of bargaining would someday limit or get rid completely of section 33.

Jared Wesley (7:52)

So this was a bit of a compromise. Right. To get the charter, there would have to be some, from the perspective of Lougheed and others, some safeguards that would allow legislatures to weigh in on this and not leave it up to the courts to decide.

Jamie Poisson (8:05)

And why was it so important for someone like Trudeau? Why did he want there to not be an outwast ending clause?

Jared Wesley (8:11)

Yeah, I think you have to go back even earlier to the 1960s and 70s when he started his career and he was an intellectual to start, and then a politician in the province of Quebec. And he was worried that at the time the country was being torn apart by Quebec nationalism and the rest of Canada. Right. And that duality was something that he thought a lot about. And how, how do we, how do we build bridges between those two solitudes in French and English Canada? And one of the ways that he saw forward was to establish a charter of rights and freedoms that would treat every Canadian the same way. Right. And, and in a way, the notwithstanding clause offers provinces the opportunity to push back on that notion that, that there isn't just one definition of what human rights are across Canada, but many.

Jamie Poisson (9:06)

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Jared Wesley (10:14)

There were two main hang ups involved in the 1982 constitutional negotiations. There was a notwithstanding clause like we talked about, but there was also the amending formula. How are they going to change, how are they going to change this constitution in the future? And Quebec was insistent that their provincial government have a veto over any changes to the Constitution. And the rest of Canada balked at that notion. And you know, historians will disagree as to the specifics of this, but Quebec was left out of the last minute negotiations that resulted in an amending formula in the notwithstanding clause. And so in Quebec, it's known as the Night of the Long Knives. It was seen as treachery and deceit. And for, you know, generations, politicians in that province made sure that any mention of the constitution or the charter was, was made in the context of Quebec not having signed on officially. And you know, the, the government of Quebec took the, took the rest of Canada to court to say that this constitution and the charter is not valid because we didn't Sign on. And the courts did sign with side with the rest of Canada.

Peter Lougheed (11:16)

They could not sign because suppose that Levaque signed a new Canadian constitution. Can he get up the morning after and he says I don't want to stay in this country anymore despite of the fact that I am responsible for the new constitution that meets the demands of Quebec.

Jared Wesley (11:35)

So you know, Quebec's use of the notwithstanding clause in the 80s and 90s is really a reaction to that treachery in their minds that happened one evening in 1981.

Jamie Poisson (11:55)

And outside Quebec, what's going on with the notwithstanding clause at that time? I understand it was only used a handful of times outside Quebec, right?

Jared Wesley (12:04)

Yeah, it was only attempted really in a few provinces, particularly Alberta and Saskatchewan, and really never, never imprinted into a law until, you know, 2021 in Ontario. Right. So but in the meantime there were a bunch of governments that flirted with the idea. So here in Alberta, Ralph Klein flirted with the idea of breaching Albertans rights when it comes to suing the government in one case or when it comes to same sex marriage. But the pushback from the Alberta public was such that MLAs put pressure on, on Premier Klein to say we don't want this right and we need to remove all, all notions that we'll be using the notwithstanding clause in those pieces of legislation. But so it's really only been in the last five or six years or so that the provincial governments have taken this step seriously and actually put it into law outside of the province of Quebec.

Jamie Poisson (13:06)

So the last six or seven years we see the notwithstanding clause take off. I think is a fair depiction. And one of the really high profile cases of this actually takes us back to Quebec again. That is Bill 21. People will remember this as a fairly controversial law that banned certain types of government employees from wearing religious symbols.

Jared Wesley (13:29)

My goal is really to unite Quebecers.

Jamie Poisson (13:32)

The bill would ban people like judges, police officers and teachers from wearing symbols like kippas crosses, hijabs and turbans at work.

Jared Wesley (13:40)

It represents values, our values, and it's important.

Jamie Poisson (13:44)

That law has survived a number of legal challenges so far, but this spring the Supreme Court is set to hear a case about the law's use of the notwithstanding clause. What's at stake in that case? How could the result potentially impact the way that governments can use the clause?

Jared Wesley (14:00)

Well, there's the Quebec case and then there's the Saskatchewan case as well. There are tools available to the government.

Peter Lougheed (14:06)

To ensure that this policy is in place.

Jamie Poisson (14:08)

Premier Scott Moe is doubling down, determined to Bypass the court so that children under 16 need parental consent to use different names or pronouns at school.

Jared Wesley (14:19)

Two high profile ones that highlight the issue of whether governments can act preemptively. In other words, act without the courts. Having weighed in on a piece of.

Peter Lougheed (14:29)

Legislation, the Supreme Court of Canada has announced that it will hear arguments in the appeal of Quebec's secularism law known as Bill 21. All the federal parties except the Block oppose Bill 21 and say Ottawa should intervene in the case.

Jared Wesley (14:45)

A landmark court battle that started in.

Peter Lougheed (14:47)

Saskatchewan is heading to the Supreme Court. The top court decided to hear the provincial government's appeal. In the school pronoun legal saga, the appeal centers on the province's preemptive use of the notwithstanding clause.

Jared Wesley (15:01)

I think that there's a bunch of legal niceties that are going to play out in the courts both in, in Quebec, but also in Saskatchewan with their transgender legislation as well. But I, I, I would say, you know what, what happens in court is one thing, but what happens in the court of public opinion is quite another. Right. And, and again, the notwithstanding clause was built to allow Canadians to, to weigh in through their representatives and then through elections as to whether the government's, you know, breaching of those rights is the right thing to do.

Jamie Poisson (15:29)

But what could the Supreme Court find and then would there be any consequences?

Jared Wesley (15:37)

Well, I'm not familiar with the ins and outs of that particular case around Bill 21, but I know in the past when governments have used the notwithstanding clause, opponents have said, well, you're not just breaching section 2 and 7 to 15, but you're also breaching some other fundamental rights. Right. And so they could be finding ways to say that even if you can pass it using section 33, there are other ways that breached these rights. But the court may say that there should be some rules placed around the use of the notwithstanding clause that would require the government, for example, to pass legislation using section 1 of the, of the charter, which allows all governments to, to breach Canadians rights provided that they do so in a way that's justified in a free and democratic society. And that's a very broad term. But the courts have given some guidance to suggest that if you're going to breach Canadians rights no matter what they are in the Charter, you have to ensure that your approach is proportion and relevant. Meaning that it's got to be a very pressing need and that you, that your abrogation of those rights is done in a way that minimally impacts those people involved. Right. And so the, the court may weigh in in this case, I, I don't know, I'm not a lawyer to say that you have to, you know, you have to pursue those other routes before you. You use the notwithstanding clause as a last resort.

Jamie Poisson (17:09)

Why do you think we've seen it be used so much in the last six, seven years? So we've talked about some of the cases, but Ontario has used it twice in laws due to election financing and a teacher strike, although both of those laws ended up being repealed. Saskatchewan used it another time. Alberta has used it twice now in a month. And just why, what has changed?

Jared Wesley (17:32)

I think there's two different trends at play here. The first is that we're a couple of generations removed from the politicians and staff and public servants that worked on the constitutional negotiations in the 80s and 90s. And so for years after that, for decades, most people were shy about even talking about the Constitution. It became known as the C word in some circles. If you just don't talk about it, you work around, around it, but you dare not touch it because it was such a divisive issue and because those folks appreciated, you know, the delicate balance that was struck in those negotiations. The notwithstanding clause was put in there as a last resort and, and that was part of, part of the deal. Right. And so I think that as time has worn on, people that were involved in those debates have since gone off into retirement and, and the new generation is just not, not aware of the norms and customs that were around those particular deals. The second piece is the evolution of the conservative movement in Canada. It's shifted away from the days of Peter Lougheed and Duff Roblin. A form of Toryism, we call it, where there's respect for tradition, respect for laws and written constitutions and so on, towards a more populist form of right wing thinking where ends matter a little bit more than means. Right. So if they've got an end in mind, then we look for ways to use the system regardless of whatever kind of customs or norms were around those particular rules. We'll do it anyway because we can. Right. And I think that that new brand of populist right wing thinking is definitely prevalent here in Alberta, Saskatchewan and other places.

Jamie Poisson (19:12)

Yeah, I just want to pull your answer apart a tiny bit just on your first point. It was interesting for me to listen to that because I was at an event, I think about two weeks ago now with Jean Chretien, who was of course the justice minister in the early 80s, and of course was part of the original negotiations, and he was asked a question about the United States and democratic norms being curtailed in the United States. And he said, you know, I'm paraphrasing, but of course he's concerned about what's happening there with soldiers on the streets, etc. But he pivoted immediately to the notwithstanding clause. Right. And he has said that today he feels like it's being thrown around and, and used for what he has called marginal reasons. And then to your second point about Peter Lougheed. Back in October, Danielle Smith, when she used the clause to end the teacher strike, she actually said that Lougheed would have done the exact same thing. I think he would have. When I look at what he said in, in response to a back to work legislation, he, he was quoted on record saying that if the, if the courts ever affirmed a right to strike, he, and prevented him from ordering his labor groups back to, to work, he would immediately convene the legislature to invoke the notwithstanding clause. You have to remember this right to strike. What did you make of that?

Jared Wesley (20:40)

Yeah, I, maybe Premier Smith didn't read the same writings and listen to the same speeches that Lougheed gave that I have, but I'm paid to. She's not. So fair enough. But in a 1991 speech here at the University of Alberta, Peter Lougheed laid out quite clearly what he thought was the proper use of the notwithstanding clause. Again, he was a major architect of this and he said it should only be used as a last resort. And what he meant by that was that governments should try everything they can to avoid using the notwithstanding clause. They should look for ways to justify and achieve their policy objectives in a way that withstands that first section of the charter in a way that is justifiable in a free and democratic society, in a way that minimally impairs the rights of folks that are affected. And so I disagree with the Premier that her approach would meet that Lougheed doctrine in the sense that the way she did it actually flies in the face of Lougheed's last resort approach. She not only used the notwithstanding clause preemptively shortcutting judicial review, but she also invoked time allocation or closure, which allowed her to compress debate into a matter of about three hours worth of discussion around a pretty fundamental bill. That debate happened in the middle of the night, didn't conclude until 2 o' clock in the morning, and the Premier herself wasn't even in the country. Right. She was on her way to the Middle East. And so I think if you look at the overall context of, of Daniel Smith's government's use of the notwithstanding clause in Bill 2. It's hard to see how Peter Lougheed would have been proud of that.

Jamie Poisson (22:26)

We've been talking about how this law has been used by provincial governments, but the federal government can theoretically use it too. And during the election campaign earlier this year, Conservative leader Pierre Polya promised to use it the worst.

Peter Lougheed (22:39)

Mass murderers should never be allowed back on our streets. For them, a life sentence should mean what it says. A life sentence. They should only come out in a box. We will do this using parliament's legitimate constitutional authority under the Charter of Rights and Freedoms.

Jamie Poisson (22:56)

In October, he also said that he'd use it to reverse a Supreme Court ruling that struck down mandatory minimum sentences for possession of child pornography.

Peter Lougheed (23:05)

Ruling is wrong headed and I would oppose the ruling and I would use the notwithstanding clause to overturn it and my future government will introduce mandatory prison sentences for possession of child pornography. So that dirt bags like, how significant.

Jamie Poisson (23:19)

Do you think it is that poll has been invoking the clause at a federal level? Does it take on a different tenor?

Jared Wesley (23:28)

There's a little bit more nuance to the conservative position on those cases. So he's not asking for an imposition of mandatory minimums in either of those cases, but just allowing judges the freedom to impose those consecutive executive and mandatory minimums. Yeah, but, yeah, no, it was done in a way that's completely the opposite to where, to the way that the Danielle Smith government approached their back to work legislation for teachers. In that he signaled it during an election campaign. Right. And he said, let's have a discussion about it. Secondly, his moves were in direct response to Supreme Court rulings a few years earlier that had said that the Harper government's approach to those issues was unconstitutional. It didn't meet the, the demands of section one of the charter. And so in a way, his was not a preemptive use. It was a, a reactive use based on what the court had said before.

Jamie Poisson (24:17)

Right.

Jared Wesley (24:17)

And so it's a bit, it's a bit different. And, and if we're, you know, if we're using the law heat standard here, I, I don't think Peter Lougheed would have as much problem with, with Polyev's use as, as he would with Daniel Smith's.

Jamie Poisson (24:28)

Who would have a problem with Poliev's use? Like, what would be the argument against that?

Jared Wesley (24:33)

Yeah, I think there are a lot of people that don't think the notwithstanding clause should have been inserted in the charter in the first place. And so those folks would have stood with Pierre Trudeau at the time. And there are folks that feel like charter rights are unbreachable. Right. And that they're inalienable. But the fact is there's not. And in fact, there's multiple ways that governments built into the charter itself, ways that they can get around it. And I think it's also important to remember that reaching rights does not necessarily mean you have to do so out of vengeance. Right. In a lot of cases, you know, courts are faced with the challenge of deciding which set of rights is paramount in a particular case. Is it a person's security? A person. Is it a person's freedom of religion? Right. And so I think that at the time, the Lougheed group and other conservatives were just looking to allow those decisions to be made not in a courtroom by folks that weren't directly elected, but by legislatures. Right.

Jamie Poisson (25:31)

I'm not a legal expert, but is one of the main concerns here that by allowing politicians to use this and then I guess also the public, that the rights of the majority can trample the rights of the minority? Right.

Jared Wesley (25:52)

Yeah. I mean, that's a tension within every liberal democracy. Canada's not alone. And philosophers a lot older than me that have a lot more time to think deeply about this have been writing about it for over 200 years. There's this. There's this tension in liberal democracy between liberalism on one hand and democracy on the other. So liberalism is rooted in this notion that every individual should be free, but there should be certain protections of minority interests against, you know, majoritarian forces. But on the other hand, there's the democratic aspect of it that says that, you know, the most popular ideas should be the ones that make their way into law. And the Canadian Constitution, whether we look at the way it's. It's blended federalism, the rights of. Of provincial governments to. To legislate in certain areas and parliament and national decision making another, or with the Charter of Rights and freedoms has been trying to balance between these two forces. And I'd argue that in every liberal democracy, we need a little bit of populism and we need a little bit of pluralism. We need a little bit of liberalism. We need a little bit of democracy. I think where people start to get worried is where the pattern starts to accumulate in one direction or another. And that's really where you're seeing a lot of the resistance here in Alberta, is that folks are saying we're tipping too much to the populist side. We're. We're not respecting enough of minority rights, and we're allowing the majority or at least the perceived majority, the one that the government is projecting. It's, it's, it's, it's supporting to, to run roughshod over minority rights. And that's really where the tension lies.

Jamie Poisson (27:21)

You talked about how we're seeing conservative politicians use this more and more. Justin Trudeau said in 2022 that the.

Jared Wesley (27:30)

Clause is, quote, not a great thing.

Peter Lougheed (27:31)

To have in a charter of rights and freedoms.

Jamie Poisson (27:34)

And in 2006, Paul Martin actually campaigned on amending the Constitution to remove it.

Peter Lougheed (27:39)

The first act of a new liberal government is going to be to strengthen the charter. And we're going to do that by removing by constitutional means the possibility for the federal government to use the notwithstanding clause.

Jamie Poisson (27:51)

Is the clause itself becoming this very partisan issue?

Jared Wesley (27:56)

That's a good question. I think it is more of an ideological dispute than a partisan one. And I say that because there are a lot of conservatives out there who would support the policy objectives of governments like Danielle Smith here in Alberta that would say, yes, we absolutely need to end that teacher strike. Yes, absolutely. We need to remove the rights of trans children and their parents in these cases because we believe in the policy objective. But at the same time, those conservatives are worried about the means through which the government's gone about achieving that. So I think it's a bit of a misnomer to say that the Conservative Party or Conservative parties across the country is in favor of the use of the notwithstanding clause. I don't think that's accurate. And I also don't think that all liberal or progressive parties if, if pushed to the limit in some of these questions would be completely averse to their. Their team using the notwithstanding clause in certain circumstances, too.

Jamie Poisson (28:54)

I think it's a good place for us to end. Jared, thank you so much for this. This is great.

Jared Wesley (28:58)

Thank you for having me.

Jamie Poisson (29:07)

Okay, that is all for today. Front Burner was produced this week by Joytha Shangupta, Matt Muse, Matthew Amha, Lauren Donnelly, Kevin Sexton, and MacKenzie Cameron. Our YouTube producer is John Lee. Our music is by Joseph Shabazin. Our senior producer is Elaine Chao. Our executive producer is Nick McCabe Blocos. And I'm Jamie Poisson. Thanks so much for listening and we'll talk to you next week.

Jared Wesley (29:40)

For more cbc podcasts, go to cbc ca podcasts.