Juno News - The battle over the Notwithstanding Clause

00:00:00.000 Hi, Juneau News. Alexander Brown, Director of the National Citizens Coalition, host here of

00:00:07.760 Not Sorry, airing three days a week. I want you to take advantage of our promo code. Go to

00:00:12.420 junownews.com slash not sorry for 20% off. And we're talking the notwithstanding clause today.

00:00:18.680 This is a big week for the notwithstanding clause. It's a big week for the budget.

00:00:22.880 There are domestic crises that Canada continues to work its way through.

00:00:26.400 The notwithstanding clause is a vital piece of our charter. It's not some workaround,

00:00:31.600 but a foundational piece essential to its very foundations. And following the liberal

00:00:36.320 attempts to meddle with that clause, to limit the impacts of our elected officials and parliamentary

00:00:41.520 supremacy, and seemingly attempt to further elevate an increasingly activist and left-leaning

00:00:46.960 judiciary, we're seeing why it's so important. Alberta needed to use it to get its teachers back

00:00:53.280 to work with the teachers union, you know, having no legal case in response after Danielle

00:00:58.400 Smith squashed that strike. And now we're seeing a deeply troubling Supreme Court of Canada ruling,

00:01:04.320 striking down mandatory minimums for pedophiles and child predators. As many have said, including

00:01:11.040 Carrie Sun, the Supreme Court has no right to soften child porn laws. Danielle Smith, Scott Moe,

00:01:19.280 and other conservatives are calling on Ottawa to use the notwithstanding clause after the Supreme

00:01:24.080 Court of Canada scrapped these mandatory minimum sentences for accessing child pornography. And

00:01:30.160 rightfully so. Pierre Polyev himself has come out with scathing remarks against the decision. Take a listen.

00:01:36.880 Let us be clear. This is not a victimless crime. The monsters who look at this material create a profit motive

00:01:47.600 for literally hundreds of kids to be tortured and humiliated in videos that may circulate for the rest of

00:01:55.520 their lives. And yet these two perverts are going to get out of jail in a year and nine months. Frankly,

00:02:03.920 those sentences were far too low. And now the court says that some other users of child pornography

00:02:11.440 should be able to get out in less than that time. Should Canadians make me their prime minister,

00:02:15.360 I will use the notwithstanding clause and I will bring in mandatory prison sentences for users of

00:02:21.440 child porn that are far higher than the ones that were already in place. In other words, the mandatory

00:02:26.160 minimums I will institute using the charter of rights and freedoms will be far, far tougher than the

00:02:33.520 ones the court just shut down because those hundreds of kids, they have charter rights. And I'm more

00:02:38.960 worried about the charter rights of our children than I'm about these perverts and pedophiles.

00:02:43.440 We have an activist judge problem. We have an out of touch judge problem where this liberal insider

00:02:49.120 bubble, these folks don't realize that ordinary Canadians have real concerns about rising crime,

00:02:54.880 chaos, social degradation, immigration. These are all issues that we now pull

00:03:00.960 more conservatively in, unlike ever before. We're going to talk to Josh DeHaas. He's counsel with

00:03:07.920 the Canadian Constitution Foundation, because this is a vital moment to not lose our notwithstanding

00:03:13.040 clause, which the liberals are now meddling with. And first, a word from our sponsor.

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00:03:52.560 to know. You can learn more by visiting unsmoke.ca. Josh DeHaas, counsel with the Canadian Constitution

00:03:59.600 Foundation, joins us. Josh, thanks for coming back on the show.

00:04:02.320 Josh DeHaas Thanks for the invitation.

00:04:04.000 Josh DeHaas Yeah, now you got, it's a busy time for you guys. Christine has an op-ed in the National Post.

00:04:10.800 I'm sure you're getting calls left and right. Notwithstanding clause, big moment for it. Even

00:04:17.040 socialists used to be in favor of the notwithstanding clause. Can you explain the foundational role of

00:04:23.680 that clause in the Canadian Charter of Rights and Freedoms and why it's considered essential

00:04:28.480 rather than just a workaround for overriding judicial decisions?

00:04:32.240 Marc Thiessen Yeah, of course. So the Charter of Rights and Freedoms, it's the document that outlines

00:04:39.040 our freedom of expression rights or equality rights or legal rights. We had all of these rights before

00:04:46.880 to one degree or another before the Charter in 82. But Prime Minister Pierre Trudeau wanted to

00:04:52.880 write that down and give judges the power to more explicitly review whether government laws or state

00:05:01.280 actions violated our rights and freedoms. And most provincial premiers, and I think most Canadians

00:05:07.200 thought it was a good idea to write that down and have a Bill of Rights like the Americans do. So they

00:05:13.120 negotiated about what's going to be in it. And some premiers were a little concerned and they had a

00:05:20.320 little bit of foresight perhaps through their own experiences about what might happen if you said,

00:05:26.320 you know, this piece of paper and how judges interpret it is going to limit how provinces can do

00:05:33.600 their jobs and, you know, pass statutes. And so one of the sort of linchpin for getting provinces to sign

00:05:42.800 on and agree was that you would have this clause, Section 33, that says where this clause is invoked in

00:05:49.040 legislation for a period of five years. The, that provision, that statute is going to prevail not

00:05:57.600 withstanding the provision itself. So regardless of what a judge might say about what the right

00:06:06.640 means, like, you know, what your right to free expression means or your right to free association

00:06:12.320 means the provinces view passed through the legislature is going to prevail for five years

00:06:18.640 at a time. So it was a sort of an essential part of the compromise that got us the Charter of Rights

00:06:23.600 and Freedoms. Now, in light of recent attempts by the Liberal government to limit the use of that

00:06:30.320 notwithstanding clause, how does this impact, I guess, what we would call parliamentary supremacy

00:06:37.680 and the balance of power between elected officials and that judiciary? So the, the notwithstanding

00:06:44.480 clause is, it is the big, um, expression of parliamentary, uh, supremacy. It's, it's saying

00:06:51.680 that, you know, even though we're moving to a system where, uh, the constitution itself is going to, uh,

00:06:58.000 limit, um, it's gonna, it's gonna determine what people's, you know, rights and freedoms are. We're not

00:07:03.440 gonna entirely give that up. We're gonna continue with the British tradition to some degree.

00:07:07.520 Where, you know, legislatures get to say what they think rights mean and where they think the limits

00:07:13.440 on those rights are. Um, there's a case going to the Supreme Court right now. It's on, uh,

00:07:18.240 ostensibly on bill 21, which is the, you know, the law that limits teachers and cops from wearing

00:07:24.400 hijabs or keep us, um, in the workplace. But what it's really become about is a couple of things. One is

00:07:31.520 whether even when the notwithstanding clause has been used, whether courts can go ahead and still

00:07:37.520 tell us that they think rights were violated. That's a big controversy, but the sort of big

00:07:42.800 surprise was the federal government. Uh, you know, the Cardi government is saying, well,

00:07:47.440 there's some cases where using the notwithstanding clause would be illegitimate entirely. And judges can

00:07:52.480 decide, uh, that, you know, despite having this very clear part of the constitution, there are cases

00:07:59.120 where, where it can't actually be used. So that's sort of throwing a big, um, nuclear bomb into the

00:08:05.360 conversation. If you ask me. Yeah. Now it's been effectively used recently in provinces like Alberta,

00:08:12.320 such as in the case of, of squashing a teacher strike that was, you know, rolling on and on.

00:08:18.160 What does this demonstrate about its importance in resolving labor disputes, for example?

00:08:23.280 So, uh, this is, I believe it's the second time Alberta has ever used the notwithstanding clause,

00:08:29.600 which goes to show you how rarely, um, it gets used and how cautious governments are to, um, not be

00:08:37.600 seen to be overriding rights, you know, by to not be seen to be over overruling the judges. But in this

00:08:44.080 particular case, you know, what happened is, um, there have been Supreme Court rulings for, for decades on

00:08:52.080 what freedom of association under the charter means. And for many, many years, they said it

00:08:57.520 does not include a right to strike or a right to collectively bargain. It literally just says

00:09:03.680 freedom of association means you can, you know, associate with other people, be part of union or be

00:09:08.960 part of a club, but it doesn't demand a certain outcome. Like you are allowed to strike or collectively

00:09:15.360 bargain. Well, in 2015, a Supreme court judge, Rosalie Abella decided, uh, to use her

00:09:21.920 words that it was time to give benediction to the right to strike. And since in 1982, they hadn't,

00:09:27.920 you know, included that in the charter, I guess she decided, I'm just gonna decide that, you know,

00:09:33.120 section 2d that freedom of association covers that right that, you know, nobody thought was actually

00:09:38.560 there in 1982. So you get that ruling in 2015. And now it means governments that try to, you know,

00:09:45.920 legislate, uh, um, employees back to work, whether it's striking teachers or any other, um, arguably

00:09:53.760 essential service are going to face this risk, um, which Ontario just, uh, found out, uh, the hard way

00:10:00.720 of, you know, owing billions of dollars to those public sector workers, because you didn't properly

00:10:07.200 respect their right to strike or collectively bargain, which, you know, I would argue doesn't

00:10:12.000 actually exist in the charter. So you, you got this fairly historic use like Alberta does, they're

00:10:17.360 not whipping out the notwithstanding clause often. The last time was, you know, the Ralph Klein era.

00:10:22.640 So, uh, I would say if ever there was a case to use it, this is the one that makes sense because,

00:10:28.480 um, otherwise it's, it's, uh, really overriding the will of, of the people for a right that doesn't

00:10:34.720 really in my view exists. So, yeah. And I know that so much of the argument against it, uh, is always

00:10:40.240 that, you know, everyone, you know, these evil conservatives are going to start, you know,

00:10:43.760 using it left and right, but it's always been this very much a break glass in case of emergency tool.

00:10:49.120 And I can think of no other greater case than the, the Supreme court's ruling going into the weekend

00:10:54.880 that struck down mandatory minimum sentences for child pornography offenses. What concerns does this

00:11:02.000 raise about the judiciary's approach to, to serious crimes against children? And, you know, how might the

00:11:08.000 notwithstanding clause address such decisions? Yeah. You know, I was just, uh, doing another

00:11:14.160 interview talk, talking about this particular case. So for those who don't know what, what happened

00:11:19.040 essentially, um, you know, in 2015, the, the Harper government passed, um, this law that said,

00:11:26.320 we think child pornography is not being taken seriously enough. We want to make sure that whenever

00:11:31.440 you're, you know, someone is guilty of accessing it, um, that, that they should go to prison for at

00:11:37.680 least a year. And, um, on the basis of reasonable hypotheticals, you know, imagined by the, um,

00:11:48.160 you know, by the lawyers in this, this case, defending, uh, people who had, had, um, actually

00:11:53.520 gotten less than the mandatory minimum, the court decided that in some cases a year is just too much

00:12:00.480 for this, um, heinous crime. And we think that, you know, Canadians would be, um, offended by putting

00:12:08.400 somebody away for a year in certain cases. And they made up some cases that do, you know, they,

00:12:14.320 they are, you can understand why the court might be, uh, concerned about, um, those particular

00:12:20.320 hypotheticals, but they're, they're not things that actually happened that were not before the court.

00:12:24.400 Yeah. And so on that basis alone, they said, um, these sentence that the one year minimum sentence is,

00:12:30.960 is too long, but you know, the, the one year minimum sentence that's been in place for a decade,

00:12:35.680 it's a result of democratic decision under the Harper government. And we had another government

00:12:42.160 for 10 years almost that didn't change it. So I think it's pretty clear that who's, who's offside

00:12:48.080 here. And it's those, uh, majority judges. And what would your assessment be of, of Pierre

00:12:54.480 Polyev's put out sort of pretty profound criticisms of this child pornography ruling?

00:13:00.560 How does this highlight the tension between what I think the public perceives as, and it's probably

00:13:05.920 correct to do so like a growing judicial activism and, and the concern in the public of a left leaning

00:13:12.160 and far too lenient judiciary and, and the need for, for such a strong tool like the notwithstanding

00:13:19.120 clause to seemingly make up for the fact that we have an activist judge problem in Canada.

00:13:26.320 Yeah. I don't know if I, if I would call it the judicial activism or an activist judge problem,

00:13:31.440 the way you're the expert. Yeah. So the way I see it, when I read these things is more,

00:13:36.400 um, a bit of an out of touch judge problem. Okay. Um, so you have a lot, if you think of who judges

00:13:42.960 are, these are like extremely successful people. Um, but they're, they're sort of the elite of the

00:13:48.800 elite. They're, they're often in their own bubbles in a way. Like they do have all of these cases that

00:13:54.320 come before them that, you know, we never see all the details of as, as lay people. So they're,

00:14:00.000 they're aware of what's happening in the world, but they're not necessarily in tune with what,

00:14:05.840 you know, how Canadians feel about something like what is cruel, cruel and unusual punishment,

00:14:12.320 you know, in their view, a year for child porn can be cruel in some cases. I don't think if you polled,

00:14:18.640 you know, your neighbors, most people would find that cruel yet they're making the determination that

00:14:23.680 that's, that's cruel. So, uh, you know, I think that the, in those cases, the judges need to look at what

00:14:30.000 parliament has done and, you know, they have put forward a bill. They've said,

00:14:34.240 we want longer sentences. It's gone to committee. People have had their chance from civil society to

00:14:40.400 comment on that. Um, and it's been in place for, for a decade and suddenly they're telling us that,

00:14:46.240 oh no, what, what the legislature decided was cruel. Well, you know, I think that suggests you're kind of

00:14:52.080 a little bit out of touch with most Canadians. Yeah. It, it strikes me as in theme with,

00:14:58.160 we see it in the polls all the time now, which is that kind of detached Ottawa political class bubble,

00:15:03.360 where we maybe aren't as genteel, uh, in our, in our social beliefs as our betters would,

00:15:10.880 would believe you to be that we really care about crime and, and safety and, and, you know,

00:15:16.000 the permissible drug use that hasn't gone anywhere or, you know, the, the situation in our streets,

00:15:21.680 immigration that Canadians are looking for, uh, the, a more of a social cohesion, more of a

00:15:27.520 refocusing on law and order, which, you know, much to the behest of, of perhaps, uh, some of our,

00:15:33.600 our sort of left-leaning talking heads. Are there historic or recent examples where the failure to

00:15:40.880 use the notwithstanding clause has led to outcomes that, that undermine public safety or, or parliamentary

00:15:46.880 intent, you know, such as the, you know, the ruling on, on mandatory minimums for, for these serious

00:15:52.480 offenses? Uh, well, the mandatory minimums thing, this has been a debate for many, many years. And I

00:15:59.360 think it, it does, um, it does put, uh, public safety, um, at risk. Um, I think the more obvious

00:16:07.760 example is not necessarily with crime, but with, with the labor, um, negotiations, you know, Ontario,

00:16:15.440 um, they, because they, they, they threatened to use the notwithstanding clause, and then they didn't,

00:16:21.840 um, do it in this case for their legislation, where they said all public sector workers are going to have

00:16:28.320 a pay freeze and, um, you know, it'll happen for a year for a third of them. And then the next group

00:16:34.000 will go through a pay freeze. Um, they, they lost a court, a court decision, a court case

00:16:41.200 on whether that violated the right to, um, to collective bargaining. And as a result of that,

00:16:46.640 Ontario is going to pay an estimated $7 billion, uh, to those workers who apparently didn't get

00:16:53.280 enough of a raise. According to some arbitrator, I worked for the government and I got a surprise

00:16:58.720 check in the mail fairly recently. Um, and I was like, what is this? I think it was like $1,300

00:17:04.000 or something. And it was, uh, a payment because Ontario was, you know, naughty and did a pay freeze

00:17:09.280 that some arbitrator decided was, um, not appropriate. Like we shouldn't be ruled by the

00:17:15.120 arbitrators or the judges, right? We should be ruled by, uh, the, the voters who put that particular

00:17:21.440 government in office to crack down on, uh, spending. Yeah. I guess that's the worry that

00:17:28.000 it's like, are we slowly becoming more of this American style system where there is this, this

00:17:33.280 judicial supremacy and not parliamentary supremacy? I guess looking ahead and to wrap, like what risk

00:17:41.040 does Canada face if the not withstanding clause is further restricted? It was obviously part of the

00:17:46.320 bargain struck in 1982. If the liberals are successful in its limitation or removal,

00:17:53.040 should we expect the constitutional crisis? You know, that an issue with the judiciary holding

00:17:59.760 absolute power. Yeah. I think what we can expect is if not a constitutional crisis, that's, you know,

00:18:06.880 big and obvious, um, we're going to see just less respect for the rule of law. You're going to see,

00:18:14.560 uh, you know, provinces like Quebec's increased, which they, they increasingly do frankly say,

00:18:20.080 regardless of what courts find, we're just going to do what we want anyway. And in an ideal situation,

00:18:26.480 what you, what you have is a dialogue between the courts where courts can say, look, you violated

00:18:31.600 rights. You need to make this right. And, uh, you know, premiers and legislatures say, oh, actually,

00:18:37.680 you know, you're right in this case, or this is one of those rare cases where we think you're

00:18:41.840 wrong. And we're going to say why, and take it, uh, to the voters, you know, we risk giving up that

00:18:47.600 sort of delicate balance that we've had in place for a long time in Canada, at least, you know, pre,

00:18:53.360 pre COVID we had in place, uh, where both legislatures and judges, uh, have a genuine respect for,

00:19:01.040 for the rule of law and are able to sort of, uh, work through these sticky issues. You know,

00:19:05.840 if the, if the federal government gets to limit the notwithstanding clause, then, um, a lot of

00:19:12.080 provinces will just start ignoring it. Josh Dahaz, Canadian Constitution Foundation.

00:19:18.560 Thanks for joining us. Thanks.

Juno News - November 04, 2025

The battle over the Notwithstanding Clause

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