Western Standard - HANNAFORD： Reining in activist judges ｜ Why the notwithstanding clause exists

00:00:00.000 Good evening, Western Standard viewers, and welcome to Hannaford, a politics show of the

00:00:20.840 Western Standard. It is Thursday, September the 17th. With me today is John Carpe, President

00:00:27.000 and CEO of the Justice Center for Constitutional Freedoms.

00:00:31.740 Welcome to the show, John.

00:00:33.120 I'm glad to be with you and with your viewers and listeners.

00:00:35.920 And there are lots of them waiting to hear from you, John.

00:00:39.000 Here in the Western Standard Opinions section,

00:00:42.080 I hear a lot of complaints about activist judges.

00:00:46.180 That would be people who are supposed to apply the law,

00:00:50.160 but actually use their judgments to change it.

00:00:53.320 That's how they are frequently perceived by the people who complain to me.

00:01:00.080 We're talking about things, for instance, like the recent Cowichan decision which seriously impacts property rights in BC or here in Alberta when a single judge substituted a contested medical and parental policy judgment for a statute passed by a government that had just been elected.

00:01:20.720 But if you talk to the judges, and I know you do, they'll say that since the Charter of Rights was

00:01:28.400 established in 1982, that's what they're supposed to do. They say they interpret the law. It's a

00:01:37.680 living tree that grows and changes, and the expectation upon them is that the law will

00:01:45.680 change if people's general view of the world changes. They're not originalists. So are they

00:01:55.640 actually making this up as they go along, or are they responding to instructions from the Department

00:02:01.680 of Justice? What is going on, John? Well, two things. When it comes to activist judges, I wish

00:02:08.140 that the judges had been a lot more active during the lockdowns and vaccine passports when the 0.94

00:02:15.040 judges turned into rubber stamps and just uh approved with very few exceptions the the judges

00:02:24.640 approved all of these tyrannical utterly unscientific measures that were violating our

00:02:30.560 freedoms of association expression religion conscience peaceful assembly and so on

00:02:35.520 and the judges just rubber stamped it and said well you know there the government says that

00:02:39.920 there's a scary virus. We believe the government. The government says that the lockdowns are saving

00:02:46.080 lives, so we believe the government. And in many cases, they blatantly disregarded evidence

00:02:51.520 that was before them. And so we could have used more activist judges during lockdowns and vaccine

00:02:58.800 passports. But it is true that these new powers were given to judges in 1982 when Pierre Elliott

00:03:06.880 Trudeau, who was very anti-American, gave us an American style constitution where judges

00:03:13.500 do have this power to strike down laws.

00:03:17.420 And how they go about their business is going to be influenced by their own worldview.

00:03:22.040 So if you have a judge who loves individual freedom, who appreciates the free society,

00:03:29.680 they're going to uphold charter rights and freedoms more so than a judge who loves government

00:03:36.120 and believes that government can do no wrong.

00:03:38.300 So that's just inevitable, that the judge's own ideology

00:03:42.060 is going to influence his or her rulings.

00:03:46.300 See, this is why so many of us like the originalist concept.

00:03:50.840 I mean, that's an American word, but we go back to the Constitution

00:03:54.160 and carefully read it, parse it, look, what is it really trying to say?

00:03:58.000 Well, okay, I don't particularly like this, but those are the rules.

00:04:03.980 Case dismissed. Case closed.

00:04:06.120 whatever. And we get the luxury, if it's a luxury indeed, of making it up as we go along.

00:04:12.120 Is that basically the difference? Well, you certainly see it in so many rulings where,

00:04:19.640 for example, the Supreme Court within the past year or two declared that it is a fact that there

00:04:27.780 are more than two genders. I'm paraphrasing. It was put into more sophisticated language.

00:04:33.420 But, you know, you cannot get away from judges being influenced by their own beliefs,

00:04:44.400 their own moral beliefs, their own beliefs, their metaphysical beliefs.

00:04:48.180 Why are we here?

00:04:49.500 What is the purpose of life?

00:04:51.080 How should we live?

00:04:51.940 Everybody has these metaphysical beliefs, broadly speaking.

00:04:55.620 Where does morality come from?

00:04:57.120 What is right and wrong?

00:04:57.960 And so whatever beliefs the judge has, they're bound to influence the decision.

00:05:04.900 So we need to elect more freedom-minded people who will appoint more freedom-minded judges.

00:05:12.220 Well, I don't think I can argue with that other than to say that there still is apparently a desire to not recognize things for what they are.

00:05:23.340 I mean, if we'd been having this conversation at the height of the Roman Empire,

00:05:28.420 we'd have been smart guys if we agreed that, yes, the emperor was actually a god.

00:05:32.240 You know, a human being could be a god.

00:05:35.060 So I get the sense that some of our legal eagles are prepared to accept the common line.

00:05:46.780 So, John, I mean, okay, I said that, not you.

00:05:49.520 Right. The Justice Center has just published a new paper in which you're going into this,

00:05:55.920 and you're actually arguing that a defense against judges taking the law out of Parliament's hands,

00:06:04.800 and that's the notwithstanding clause. Now, people think that's only for incredibly

00:06:10.320 serious events, you know, a nuclear option, as our colleagues in the mainstream press love to

00:06:17.360 call it when they're criticizing people for doing it but that's not what your report is calling it

00:06:22.400 can you tell us a bit about that so the knot was standing close section 33 saves democracy

00:06:28.800 and saves us from judicial tyranny and it's a little bit of uh pushback against uh pure

00:06:36.960 elliot trudeau's american-style constitution that was when the charter was added to our

00:06:43.440 constitution in 1982, giving new powers to judges.

00:06:47.720 So we didn't go all the way in so far as a parliament and the

00:06:53.460 provincial legislatures can expressly opt out of a court's

00:06:58.440 interpretation of a fundamental freedom.

00:07:01.140 So a practical example, uh, in Ontario, Premier Doug Ford in

00:07:06.600 around 2018, passed a law to reduce the number of city council seats

00:07:12.420 in Toronto from 57 down to 25.

00:07:15.920 An election was already underway.

00:07:18.380 Candidates were justifiably upset.

00:07:20.840 They had their campaign literature and so on.

00:07:24.540 And all of a sudden we're going to go from 57 to 25 seats.

00:07:28.380 They took it to court and the court rendered this ridiculous ruling saying that

00:07:34.300 this reduction of city council seats violated freedom of expression,

00:07:40.040 which it obviously did not.

00:07:41.560 And later on, the Ontario Court of Appeals said, yeah, no, this was not a violation. 0.84

00:07:45.980 It may have been a bad move or a stupid move, but it did not violate freedom of expression.

00:07:50.660 So the Ford government said, we're invoking Section 33. 0.95

00:07:53.620 We're opting out of the court's interpretation of freedom of expression.

00:07:59.420 And so they got their law through and Toronto now has 25 seats instead of 57. 0.63

00:08:05.200 Another example in Alberta, an activist judge struck down the Daniel Smith's new policies to protect children from transgender ideology.

00:08:18.320 So introducing a requirement for parental consent, banning life-altering surgeries for minors, for kids under 18.

00:08:28.640 and an activist judge said that this violated a child's charter right to keep his parents in the

00:08:36.260 dark about what's happening at school, what's happening with his own body. It was outrageous.

00:08:40.500 So the Smith government responded appropriately and said, we're using section 33 to the not

00:08:47.160 withstanding clause to opt out of this woke activist judge interpretation saying that children

00:08:56.180 have a a charter right to keep their own parents in the dark so actually that that really wasn't

00:09:01.540 a nuclear option at all that was a that was the uh but look dog four doesn't seem to have suffered

00:09:08.900 too much from the wrath of the people you know those people who thought there should be 57

00:09:14.020 council seats uh how dangerous is like is uh is premier smith playing with fire here you know

00:09:21.300 know, there's another part of the Constitution, Section 1, that allows judges to trample on

00:09:27.500 rights and to uphold government measures, even when the government admits in court that, you

00:09:33.240 know, this law is violating freedom of religion or expression or whatever. And judges can trample

00:09:37.940 on rights by upholding these government laws. So Section 33 is, you could say it's counterbalance

00:09:45.280 So section one, section one says that, uh, the charter protects, uh,

00:09:51.200 rights and freedoms subject to such reasonable limits prescribed by law as

00:09:56.760 may be demonstrably justified in a free and democratic society.

00:10:00.000 So a government, uh, lockdowns are a perfect example.

00:10:03.520 Governments admitted in court, yes, these measures do violate our freedoms

00:10:08.200 of association, conscience, religion, peaceful assembly, and so on.

00:10:11.380 Yes, it was admitted.

00:10:12.600 And the government said, this is reasonably justified, and the judges accepted that without taking a hard look at the evidence.

00:10:21.520 Well, I've heard it said that the federal government has never used the notwithstanding clause.

00:10:25.780 Is that an example of it being used or just being carefully messaged?

00:10:31.180 It's only been used by the provinces.

00:10:34.460 And in our report, just about every case that it's been used, the same government that used the Knot with Sanding Clause to opt out of a court ruling, that government has been re-elected in the subsequent election.

00:10:49.460 And that's happened in Quebec, in Ontario, in Saskatchewan, and in Alberta.

00:10:54.980 But the expectation, your expectation, anyway, wouldn't be that this is going to be the thing that upsets Premier Smith, because she also used it in respect of the teachers.

00:11:09.660 Now, there they did something a little different.

00:11:13.980 They used it.

00:11:15.480 The word is preemptively.

00:11:17.800 You can normally, you make a law, it's challenged, you lose in court, and then you play the section

00:11:26.420 of the jury.

00:11:27.420 You come back, you change the law, and use it.

00:11:29.160 Notwithstanding what the court said, we're going to do this. 0.99

00:11:31.380 Well, that was one example over the trans medical treatments. 0.98

00:11:37.740 Well, with the teachers, they didn't wait to be challenged in court.

00:11:41.440 They just put it in right at the start.

00:11:43.760 Was that a dirty pool? 0.78

00:11:45.540 It's the same thing Quebec's been doing for 40 years. 0.87

00:11:48.160 Yeah, but that's Quebec.

00:11:49.040 I mean, we mock them when they do that.

00:11:52.560 Well, there's a Supreme Court ruling from, it was 10 or 15 years ago,

00:11:58.540 interpreting freedom of association as conferring power on public sector unions

00:12:04.740 to hold taxpayers hostage and so the premier presumably was getting legal advice that if she

00:12:12.420 legislated the teachers back to work that the teachers would go to court and they would get a

00:12:17.760 court ruling to strike down legislating teachers back to work as violating a previous supreme court

00:12:24.440 of canada very pro-union decision so ahead of time she just said we're using the notwithstanding

00:12:31.280 clause because we are legislating the teachers back to work and we don't want to go through

00:12:37.420 the whole rigmarole of having that struck down by a court.

00:12:42.160 Right.

00:12:42.900 Okay.

00:12:43.320 Well, I suspect that in purely practical terms, a lot of parents breathed a huge sigh of relief

00:12:50.420 when she did that because otherwise they'd be looking at more stop, start, stop, start,

00:12:57.280 It's tough making arrangements to look after your kids when you, uh, when the schools are on strikes.

00:13:03.800 I think what it'll be in a, what might be an issue in the next provincial election, yeah, the, the next provincial election, the, the issue will probably be where, where the teachers treat it fairly.

00:13:18.580 Yes or no.

00:13:19.540 Does the government have good education policies?

00:13:21.400 Yes or no.

00:13:22.180 That's going to be the issue.

00:13:23.260 I don't think people are going to vote on whether it was right or wrong to use it

00:13:27.500 not with standing clause.

00:13:28.420 I think that's a bit of a side issue.

00:13:31.060 Okay.

00:13:31.880 Well, your paper, this one's just published last week, I think.

00:13:37.180 Yes.

00:13:37.400 Your paper treats recent uses, the parental consent, one that we're talking about,

00:13:43.980 for example, or names and pronouns, restrictions on medical interventions for minors.

00:13:50.280 Back to work laws.

00:13:51.600 You go into all of this, and when the clause has been used, you're treating them as democratic

00:14:01.800 corrections of judicial readings of a number of—for the sake of the listener, we won't

00:14:10.360 number off the—but the Constitution says this, and it's challenged by a provincial

00:14:16.120 government and they use the uh they use the notwithstanding clause to make sure it sticks

00:14:22.120 and opponents say those are exactly the minority protection cases and trans is a good example of

00:14:28.360 this minority protection cases that the charter was actually written for how do you answer the charge

00:14:36.360 that the notwithstanding clause is being used to insulate majorities from irritating minorities,

00:14:46.980 or minorities that they consider irritating, I suppose I should say.

00:14:51.900 Well, this raises the question, who do you trust more as a group to uphold and to properly

00:15:00.040 interpret Charter Rights and Freedoms, judges or politicians? So the British style that we

00:15:05.340 had until 1982 said, parliament is sovereign,

00:15:09.620 parliament is supreme.

00:15:11.100 If you don't like a law that parliament passed,

00:15:13.020 then get active in the democratic process and

00:15:16.580 elect different MPs or pressure the current MPs

00:15:19.440 and get a different law.

00:15:21.300 The American style that we've adopted largely

00:15:25.980 since 1982 is saying that the judges are better

00:15:31.440 at protecting our rights and freedoms than

00:15:34.420 politicians. So we give judges a lot of power. So at the end of the day, um, I think both groups 0.54

00:15:42.500 are fallible. I think you would, I think it would be an error to say that, that, you know, judges

00:15:47.640 are necessarily going to do a better job of interpreting charter rights and freedoms when

00:15:52.440 you get this, you know, crazy Alberta judge saying that, that, uh, children have a charter right to

00:15:58.260 keep their own parents in the dark. It's insane. Uh, I would also, I wouldn't, I wouldn't say either

00:16:03.940 that politicians are necessarily, you know, going to do a better job at interpreting

00:16:10.700 charter rights and freedoms.

00:16:12.380 The notwithstanding clause gives us the flexibility though, which is why it's an

00:16:16.220 important part of the constitution.

00:16:17.720 So the courts can issue rulings, the elected government can look at it and, you know,

00:16:23.100 most of the time they're going to abide by it and say, well, you know, that's what

00:16:27.680 the court ruled.

00:16:28.360 In a few cases, they're going to push back.

00:16:32.100 And then the voters still have a say.

00:16:33.780 the voters really disapprove of the government using the notwithstanding clause, they can vote

00:16:38.340 that government out of office. Yes. Okay. Well, it certainly does seem to me that, you know,

00:16:45.380 you can't unelect a judge. Once they're appointed, they're there until as long as they want to stay

00:16:49.460 to 75. 75. Yeah. Whereas, obviously, elected officials are responsible every four years

00:16:58.100 to the electorate. So by giving this particular weapon to the elected

00:17:05.620 representatives, your MP or MLA, you actually do keep the citizen who's paying the bill

00:17:14.740 at the basis of the whole thing. It's a weapon available to us to use against judicial tyranny.

00:17:22.500 Right. We don't want to be in a situation where really there is no democracy because the judges are deciding our immigration policy and they're deciding our criminal law and abortion and capital punishment and healthcare and taxes. And we're just ruled by judges and our elected representatives become these kind of minions, peons that are operating at a lower level because really the judges are in charge. I don't want that.

00:17:49.000 I want democracy. So Section 33 helps us to avoid judicial tyranny.

00:17:56.900 Yeah, I mean, we've seen some incredible decisions out of the courts where people who really deserve to go to jail for a long period of time get a shorter sentence because it's going to interfere with their immigration application.

00:18:08.940 That's outrageous.

00:18:09.400 Maybe we don't want these people. This is the kind of...

00:18:12.200 We've got enough Canadian-born criminals. We can breathe we're here. 1.00

00:18:15.300 But this is the kind of person who actually does tend to write in and say, judicial activists,

00:18:22.740 look what they've done now, you know, and they can.

00:18:26.380 So look, in your report's closing recommendation, it's cultural as much as legal.

00:18:34.540 Treat careful use of Section 33, that's the notwithstanding clause, as evidence of democratic

00:18:41.700 health, not failure.

00:18:42.920 What would a mature constitutional culture actually look like in newsrooms, law faculties, and opposition benches?

00:18:54.560 What is a justice center's job in building it before the next five-year renewal term runs out?

00:19:05.760 Educating the public, and that would include lawyers, judges, law professors, I mean, that's an ongoing task.

00:19:12.920 There are a lot of judges and law professors and lawyers who don't know that we

00:19:18.020 wouldn't even have the charter as part of Canada's constitution had it not been

00:19:22.800 for the notwithstanding clause.

00:19:25.220 And you get this weird language sometimes where they talk about it.

00:19:27.740 It's like, I've got to cut in there.

00:19:30.120 What you just said, there are law professors, people teaching law

00:19:35.060 in universities who don't know that.

00:19:38.540 Well, when you listen to the rhetoric, when they talk about section 33,

00:19:42.400 as if it's against the charter when it isn't against the charter.

00:19:46.240 It is part of the charter and that's not hair splitting.

00:19:49.960 That's a very fundamental point.

00:19:52.240 The notwithstanding clause is part of the charter and you will sometimes

00:19:56.940 hear, uh, lawyers, law professors say, well, section 33 is against the charter.

00:20:02.840 It's not against the charter.

00:20:04.400 It's, it's part of the charter and the charter.

00:20:07.180 The notwithstanding clause is part of the charter.

00:20:08.740 It's part of the charter. And it was put there at the insistence of a number of premiers who would not have signed on unless that was part of the total package. And so Pierre Elliott Trudeau consented to having the notwithstanding clause.

00:20:26.140 So we get kind of a bit of a compromise between the British sovereignty of parliament and the American constitutional democracy where judges can strike down laws and there's no other remedy.

00:20:38.740 You just, you abide by it.

00:20:40.360 That's it.

00:20:41.080 Okay.

00:20:41.480 So Canada chose a middle path.

00:20:43.980 I think we're fairly unique in the world in doing so, are we not?

00:20:47.700 I'm not aware of other countries that have a notwithstanding clause.

00:20:50.620 Other countries have either sovereignty of parliament, which Britain has again, arguably, after leaving the European Union.

00:20:58.920 That's a whole other topic.

00:21:00.480 Or they have an American-style constitution where judges can strike down laws.

00:21:04.420 I'm not aware of countries that have this middle path.

00:21:09.420 John, this is a fascinating discussion.

00:21:12.600 We're going to have to wrap it up there.

00:21:13.860 But I know that you've got one other thing out there at the moment.

00:21:17.840 I saw your article.

00:21:19.660 Excuse me.

00:21:20.620 in the uh in the western standard this morning about uh liberty and freedom of speech and so on

00:21:26.860 was that going to be the next justice center thrust yes we're going to be uh shortly commencing

00:21:33.500 a very active campaign to amend human rights legislation so that in alberta for example we

00:21:40.140 repeal section three which allows people to get prosecuted over expressing their opinions we need

00:21:47.260 to remove that repeal it remove it from the legislation and we need to do that in other

00:21:52.700 provinces as well i'm actually staggered to learn that in alberta there is the law provides this is

00:21:59.420 section three of what of the alberta human rights act section three allows what's happening to 0.70

00:22:05.180 bonita peterson right now she's getting prosecuted bonita pearson bonita peterson is a lady from

00:22:11.180 Westlock who, uh, publicly disagreed with rainbow 0.99

00:22:17.380 colored crosswalk.

00:22:18.980 Oh yeah.

00:22:19.240 I've said crosswalk should be black and white.

00:22:21.760 The rainbow is political controversial symbol.

00:22:25.520 We don't want that. 0.96

00:22:27.020 She's now getting prosecuted by the human rights

00:22:29.680 commission in Alberta, uh, over having expressed her

00:22:33.920 opinion on a political topic.

00:22:36.640 So John, we have to wish you luck with them. 0.97

00:22:39.900 Back to the 60s, blacks and whites together. 0.96

00:22:42.760 All right. 0.92

00:22:44.240 John, thank you for coming in.

00:22:45.740 Thanks.

00:22:45.940 Always a pleasure to see you.

00:22:47.960 Ladies and gentlemen, for the Western Standard, I'm Nigel Hannaford.

Western Standard - September 20, 2026

HANNAFORD： Reining in activist judges ｜ Why the notwithstanding clause exists

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