, 09.24.2018 06:56 AM

Column: the curse of the notwithstanding clause

Defeat, in politics, is almost always preceded by some sort of an overreaction.

You know: Paul Martin, desperate to avoid defeat in the 2006 federal election, declares that he will take away the federal government’s ability to use the notwithstanding clause.  Didn’t work. He lost.

The Grant Devine government in Saskatchewan used it in 1986, desperate to ensure some public sector workers were forced back to work.  His government was subsequently defeated, and a bunch of his MLAs and staffers later served time for expense account fraud, too. For good measure, the federal Conservatives wouldn’t even let Devine run for them.

Ralph Klein, desperate to keep social conservative knuckle-draggers happy, mused about using the notwithstanding clause back in 2005, to prevent same-sex couples from getting married.  A few years earlier, in 1998, he wheezed that he’d also use section 33 of the Constitution to prevent compensation for thousands of innocents who had been subjected to forced sterilization by Alberta’s government between 1927 and 1972.

He didn’t, though, in either case.  Klein’s willingness to use brute constitutional force against gay people who love each other – and against people who had been sterilized simply because they had disabilities – will follow his name throughout time, like a foul curse.

Quebec, however, wasn’t nearly as shy as Ralph Klein.  From 1982 to 1987, in fact, the separatist Parti Quebecois government actually inserted the wording of the notwithstanding clause into every single piece of legislation it passed – so desperate were they to prevent any of their laws from being challenged in court. That all was a bit too reminiscent of a certain European nation in the 1930s, so the PQ was sent packing in 1987, and the practice stopped by the Québec Liberals.

In 1988, however, the Quebec Liberals were eventually desperate, too. So they invoked the clause to prevent people from putting English words on signs.  They got condemned by the United Nations for that, so the Robert Bourassa Liberals rewrote their anti-English law to make it somehow conform with the Charter of Rights.  Bourassa went on to quit politics, and his successor got wiped out by the PQ after just a few months in power.

See the threads weaving through all of that?  See that? Desperation, and the notwithstanding clause.  In Canada, the two go hand-in-hand: desperate politicians use the notwithstanding clause – or say they’re going to, or simply start talking about it – and then they pay a steep, steep price.

The Ontario Progressive Conservative government didn’t end up using section 33. But, so desperate were they to winnow down a municipal council by a few puny seats, they said they would if they had to.

Asked for some justification, the Ontario PCs went on and on about how judges are appointed, and how politicians aren’t. (Forgetting, apparently, that it is the politicians who do the judicial appointing, up here in Canada.)

But logic is irrelevant, among the desperate. No one knew why they were so desperate, really – would it have killed them to wait a little bit, and pass their law when an election wasn’t already underway? – but desperate they were.

So: they were condemned by one of the authors of the Constitution, Jean Chretien. They were condemned by Brian Mulroney – a fellow Conservative who (like Kim Campbell, like Stephen Harper) never, ever used the notwithstanding clause. They were condemned by another Ontario Progressive Premier, the much-revered Bill Davis.

Most notably, they were condemned by the people. Across Toronto, across Ontario, across Canada: people were mad at the Ontario Tories. The polls showed it. Whatever honeymoon the weeks-old Ontario PC government was enjoying was effectively obliterated by the constitution desperation.

Does the same fate await them that befell the others? Will they carry the notwithstanding curse to the political graveyard?

Who knows. Time will tell.

But their stated willingness to use a constitutional nuclear bomb – and their sheer desperation – will not be forgotten anytime soon.

It shouldn’t be.


  1. KmmF says:

    Analogies merely explain phenomena to people, analogies do not predict future outcomes. So there is no curse. Correlation is not causation thankfully. And like all governments, Ford will be desperate near then end when the pendulum of power must swing-ith back to the Liberals.

    Section 33 is pure punk-rock. Totally cool to use as part of a healthy federal system. Chretien digs it. Vive Section 33!

    • Gyor says:

      The pendulum will swing to the NDP next, not the Liberals whose are utterly shattered and crippled and being out fundraised by the Greens. There is no Justin Trudeau waiting in the wings to pick up the pieces, he is busy federally.

      • KmmF says:

        Horvath will have a difficult time coralling the progressive vote. The Liberals and NDP will split the vote in 2022 and then in 8 years the Liberals will get in with a new leader who you haven’t even heard of yet…Representative democracy at it’s finest. Doug Ford would have to do something extremely horrible for anything other than 2 terms. Reducing “Trannah’s city council” is not going to be remembered for long…

  2. Robert White says:

    My take on this is that Feudal Lord Ford wants to take a page from Orange Jesus Cheeto-head-in-Cheese south of the border. Feudal Lord Ford erroneously thinks that populism as defined by the Koch brothers and their billions is enough to guide governance as long as one can whip up the frenzied population with cheap sloganeering like ‘Buck-A-beer’ & political bluster like…” Why is it that Gas Stations continually raise the rates of gasoline before a long weekend–and I’m going to put a stop to that sort of gouging at the pump’ as Premier of Ontario.

    Feudal Lord Ford is a one trick pony just like his populist proto-Fascist drunken meandering infantile hero south of the border. Feudal Lord Ford has not lowered gas prices at the pumps whatsoever, and his populist ‘Buck-A-beer’ campaign fizzled down to a nothingburger on a plain white bread bun.

    By allowing power to go to his head Doug Ford has managed to look hollow like his babbling buffoon of belligerence The Duck down south.

    What is most striking is that AG Mulroney has started out her career in the legislature by utilizing the largest sledge hammer she could get her hands on in the tool crib of jurisprudence in CANADA. The heavy handedness use of our federal laws to exact compliance on provincial matters is extreme & premature. Looking academic and legislatively adept is not Ms. Mulroney’s forte as she delegates the legal process from her provincial post. In brief, not ever her own father agrees with the tack taken by her very own staff in the legislature.

    Heck, one would think that dear old dad would be beaming with pride & accolades.

    IMO, these are not legislators preening center stage. These are power hungry wannabes without a well formed plan to govern without utilizing sledge hammer legislative commands.

    What has Ford accomplished to date?

    No second term for this crew of populists, thanks!

    • The Doctor says:

      Just a factual thingy: I loathe Trump, but “drunken” he ain’t. Apparently he doesn’t drink.

      • Warren says:

        I share this one thing with him.

        • Robert White says:

          Drunken meanderings is a literary term of endearment & affection that I utilize instead of using the term ‘spew’ or
          ‘frothing-at-the-mouth’ with ‘bile’ as infantile narcissist id impulse driven lunatics like The Duck typically do to irritate everyone.

          Proto-Fascist ‘drunken meanderings’ likens the term to being drunk on power. Politics is all about power. Nothing defines politics like the word ‘power’. Politicians that spew garbage ad infinitum via the twitterverse 24/7/365 are drunk on the power to offend like they are ‘a drunk on a train that one cannot extricate themselves from as it runs 24/7/365 and never stops even to let one off at The Hotel California.

          The Duck’s drunken meanderings are characteristic of more than mere reference to non-existent alcohol consumption. The Duck is incessantly drunk on power for the sake of attention getting & acceptance. He wants to be the center of attention for the entire world because he is drunk on his own reflection in the narcissistic mirror of prime time television news & their ratings of approval.

          This is a guy that syndicated a tv show entitled ‘The Apprentice’ so he could pretend that he was the boss and fire everyone in sight of his tiny fingers on his tiny hands.

          The Duck is not what is important in life to the world population. He is simply too drunk on power for me to not assume that he is a raging drunk of some sort that is exhibiting the classic signs of Alcohol Psychosis as defined by Korsicoff’s Psychosis and modern literature on alcohol addiction symptomatology.

          The Duck’s brother was an alcoholic that died from alcoholism. The Duck never drinks because of that, I am well aware. Unfortunately, The Duck’s drunken meanderings are characteristic of much more than mere ‘alcohol intoxication’ as I use the term liberally to denote a state of mind & speech pattern.


  3. Beth Higginson says:

    I agree with you on this. There was also mention that after Mike Harris did the amalgamation of Toronto City council the Conservatives were out of power for over 15 years.

  4. Gord says:

    Minor quibble – the PQ got the heave-ho in favour of the PLQ in 1985, not 1987. In any event, Bourassa was not shy about using the notwithstanding clause either, as you pointed out.

  5. Steve says:

    This is so early in Ford’s mandate that it will likely be nothing more than a vague memory come Election Day. Horwaths daily hysterical shrieking that the sky is falling is wearing thin, makes her look foolish and just reminds voters they dodged a bullet by not letting the MSM steer them into voting for the NDP. The Liberals are now a rump party, having been thoroughly routed. I can’t see them rebuilding or regaining voter trust in time for the next election. That is a good thing. Of course all bets are off if Ford continues his scatter gun approach to dealing with what he perceives as issues.

  6. Warren,

    Ford, like Justin before him, has a choice: he can run the place like a bunch of political amateurs or he can statesman-up before the next election.

    Guess what happens if you don’t statesman-up?

  7. Prabjot Gill says:

    Warren you forgot to mention in the case of QC, the use of the Notwithstanding clause, rightly or wrongly, galvanized opposition to the Meech Lake Accord and ultimately led to defeat of the Accord.

    I sometimes wonder how Robert Bourassa and his advisors didn’t think that could happen.

  8. Pedro says:

    It’s a long time to the next election. If Doug Ford is able to turn some manufacturing around in Ontario, clean up the foul accounting, keep the price of gas and electricity from ramping up as they did in the past 7 years or so and stop the nickel and dime increases in services (vehicle permits anyone?) this political theatre over arguments that affect regular folks’ day to day life NOT ONE IOTA will be forgotten. Big “IF” tho’.

  9. Hello, I’m publishing an Op-Ed on the Notwithstanding Clause soon, and I wanted to get permission to use your image. I would be willing to put an Image Credit link at the bottom to your blog. Could you send me a full-size image? Chris

Leave a Reply

Your email address will not be published.