The truth about the notwithstanding clause

We are being told that there is some kind of constitutional crisis in Canada right now because Doug Ford and the Ontario PC government wants to use the notwithstanding clause.

This is part of the Charter but should rarely if ever be used, especially not on a minor issue like a question on city council we are told. The clause should only be used for major issues or a crisis the chattering classes tell us.

Did you know this clause was used earlier this year to deal with a school board issue?

There was no controversy, no leading of the nightly national newscasts, no editorials from the big Toronto papers talking about the shredding of the Charter.

In fact, when Saskatchewan held third reading of the School Choice Protection Act on May 23, 2018 there wasn’t even a recorded vote.

That’s right, the NDP backed the government in using the notwithstanding clause to override a court ruling that found violations of sections 2 and 15 of the Charter.

Where was the outcry?

If this should never be used, then why the silence from the Toronto based media.

There are a couple of reasons this decision by the Saskatchewan government didn’t generate headlines while the national and Toronto based media are obsessed with Ford using the same clause.

  1. Doug Ford. Let’s face, Ford is a lightening rod and the media see themselves as Ford’s opposition.
  2. Toronto is the most important thing to the residents of Toronto. That is understandable but Toronto is also the centre of our media and they rarely notice what happens outside of the neighbourhoods with the old white street signs.

Now what about these claims that the notwithstanding clause should never be used. Are they legit?

Is that what the framers of the Charter, the premiers of the day in conjunction with then Prime Minister Pierre Trudeau, really intended?

No, not at all.

Former Newfoundland Premier Brian Peckford has written that this is not the case. He says without this clause, patriating the constitution would not have happened.

“I was there when this was agreed to. Without it , there would have been no Charter or amended Constitution,” Peckford writes.

I was tipped off to this by Norm Spector who was working as the top civil servant to BC Premier Bill Bennett and later became a top civil servant in Ottawa.

Norm joined me on my radio show on Newstalk 580 CFRA on Monday to explain what really happened in the room.

“They were not at the table for the final negotiations,” Spector told me regarding the three former attorney generals that wrote an open letter recently. Those three men, Jean Chretien, Roy Romanow and Roy McMurty.

The man at the table.

“Brian Peckford was Premier of Newfoundland in 1981 and he ending up presenting the compromise provincial proposal at that final meeting on November 5, 1981,” Spector said.

Spector says that Ontario and New Brunswick were backing Trudeau on a constitution without a notwithstanding clause and other compromises while the other 8 premiers were on the other side.

He pointed to Allan Blakeney, then Premier of Saskatchewan, who supported the notwithstanding clause from the left to protect social reform and action while Sterling Lyon, the Premier of Manitoba, supported it from a more traditional conservative position.

He pointed out that there was always a strong opposition among a group, led by Ontario’s Bill Davis, who never liked the compromise deal and have sought to delegitimize it from day one.

Take a listen to the full interview below and share this on social media.