Any Israeli who has visited Canada even once knows that there are significant differences between the two countries. That’s why it is so frustrating so see proponents of the judicial reforms point to Canada as the inspiration for the “override” that is the centerpiece of Justice Minister Levin’s judicial reforms.
As a Canadian, it feels like we are being used by the proponents of the reforms to support their cause. Nobody likes to be used. A group of Canadian jurists and law professors issued a statement expressing concern about the Israeli proposals. Seven former Supreme Court of Canada judges, including the former Chief Justice of Canada, put their names to the statement.
For decades there were strong ties between the legal systems of Israel and Canada. These existed between the judges of the Supreme Court of Canada and of Israel, between academics and between senior officials at Israel’s Ministry of Justice and Canada’s Department of Justice in Ottawa.
I don’t know if anyone at Israel’s Ministry of Justice sought advice from their Canadian counterparts on the proposed judicial reforms. But certainly on the adoption of “the Canadian override”, they should have. Here is what the lawyers at Canada’s Department of Justice would have likely told their Israeli counterparts.
Canada’s override – referred to here as “the notwithstanding clause” is a section in the Canadian Charter of Rights and Freedoms which was adopted in 1982 as part of a package of constitutional reforms. It was included at the insistence of provincial premiers who opposed Prime Minister Pierre Trudeau’s proposed constitutional reforms. The Charter of Rights and Freedoms was the centerpiece of Trudeau’s reforms and it quickly became wildly-popular with Canadians such that Trudeau’s proposals became known as “the People’s Package”.
Trudeau’s Liberal Party held a majority in both houses of Parliament and could have pushed through the constitutional reforms without the support of either of the two opposition parties. But he felt it was important to have support from the opposition and he obtained and maintained the support of the third-party New Democratic Party (NDP), a social democratic party while expressing an openness to listen to the opposition Progressive Conservative party, the party of the center-right in Canada.
Trudeau had Parliament hold public hearings on his package of constitutional reforms. They were the first ever be televised and they were the most inclusive exercise in constitution making in Canada’s history. Over 100 witnesses testified before the committee representing legal groups, religious groups, civil rights organizations and other voluntary associations.
There was next to no discussion of an override at this committee or publicly because it had not been in included in any of the draft proposals published by the federal government.
The override was a last-minute addition to the Charter included at the behest of the provinces to obtain their political support for Trudeau’s package of constitutional reforms. It was championed by premiers both on the left and on the right, for different reasons. They shared in common a belief in legislative supremacy and a hesitancy to surrender power to the courts.
The announcement of the override deal triggered a strong public backlash and women’s groups mobilized to lobby the governments to change the pact to exclude from the reach of the override a provision dealing with equal application of Charter rights to men and women. They succeeded.
It is difficult to say what the intention of the Canadian override was because there was so little discussion about it and because it was the product of a messy constitutional deal. To the extent that there was public discussion about the override by those involved, it appears that it was envisioned to be used sparingly, in exceptional circumstances, as a political safety valve.
Canada’s notwithstanding clause was thus born in controversy and it has remained so to this day. Quebec – which had not agreed to Trudeau’s deal but was legally bound by it – used the clause in 1988 to override freedom of expression and protect one of its signature language laws mandating the use of French on commercial signs. This led to a huge backlash in the rest of Canada, making the override a virtual political taboo for the next three decades. To this day, the federal government has never used the override.
In recent years, that taboo has been broken as governments in Quebec and Ontario, Canada’s two most populous provinces, have used or threaten to use the override on a number of occasions. This has led for calls for federal intervention and for restrictions to be placed on the use of the notwithstanding clause by the Supreme Court of Canada. Prime Minister Justin Trudeau – son of Pierre – mused recently about the need for the Supreme Court to clarify – read restrict – the use of the override. One way or another, Canada’s Supreme Court is likely to weigh in on the use of the override in the coming years.
The bottom line is that Canada’s override is, and always has been, highly controversial. Forty years after the adoption of the override, Canadians are still working out its proper role within our democracy. One thing is clear: the Canadian override is certainly not the success story and model that its Israeli proponents make it out to be.