Citizens should oppose pre-emptive use of the Notwithstanding Clause.

Those drafting the Canadian Charter of Rights and Freedoms cast a broad net for invocation of the Notwithstanding Clause (Sec. 33).  The clause allows any Canadian legislature (including Parliament) to declare that an Act, or clause within an Act, of the legislature can operate ‘notwithstanding’ the provisions of Sections 2 and/or Sections 7 to 15 of the Charter

My argument begins with the assertion that a law is just words until it is enforced.  The exact wording of the law, and the precise description of the action of the infraction against the law, and the rigorous judicial process for determining whether the entity accused is guilty of the infraction, and the setting of sentences or sanctions – all are important to a fair and transparent judicial process.

Consider an extreme example.  No one could launch a coherent Charter challenge against a law which affected the free speech or religious rights of Venusians.  The law must apply to actual or probable situations.  As well, there must be evidence of contravention of the law before it can be applied.

We can take from this that any law must apply to particular situations which could occur.  Most importantly, the law must apply to *all* situations described in the legislation, regardless of circumstances.  In cases where the law is drafted overly broadly, this can result in convictions and sanctions for ‘statutory’ crimes which most would not think of as crimes at all.  For example, the Supreme Court (Attorney General of Québec vs. Senneville) recently determined that a law which prescribed a minimum sentence for all situations of child pornography created a possible punishment clearly disproportionate in a hypothetical case where one person might have sent one pornographic image of an underage person to one other person, who looked at it and then deleted it.  Enforcement of the mandatory minimum sentence in this later case would constitute cruel and unusual punishment, against the principles of Section 12 of the Charter.

In summary, laws must be precise in their intent, objective, target, evidentiary requirements and enforcement procedures.

When the ‘Notwithstanding Clause’ is applied pre-emptively – i.e., written in legislation presented to a legislature – the clause is excluding any and all situations which might arise in the application of the law.  That in my mind is far too broad, and risks its own disproportionate application.

Pre-emptive use of the Notwithstanding Clause was in Alberta’s legislation ending a teachers’ strike: Bill 2, the Back to School Act.  The legislation was enacted without explicit consideration of the alternatives to achieve the same objective of ending the strike: binding arbitration, mediation, or passing the legislation without use of the Notwithstanding Clause.

Consider the thesis, then, the Notwithstanding Clause may itself be unconstitutional if applied with careless abandon, as it was in Bill 2.

The immediate opposing argument is that the Notwithstanding Clause applies to the very provisions I am invoking (Sections 7 to 15), those pertaining to legal due process and the principles of fundamental justice.  Yet the preamble to the Charter asserts that Canada is founded on principles that recognize the supremacy of the rule of law.  As a preamble, its use was never intended to be enforceable, but it was intended to be an interpretive guide: in this context, the guide should emphasise predictability and limits of the use of arbitrary power.

In sum, the Constitution and the Charter should adhere to their own principles.