Francois Legault, full of confidence with the surprising scale of his CAQ electoral victory, is currently threatening to make use of the Notwithstanding Clause to insulate his proposed immigration restrictions from court challenges. He may go through with it even in the face of substantial public opposition, particularly in Montreal. But if he does, I hope that the public debate will distinguish between arguments about the substance of his proposals from arguments about the ‘legitimacy’ of the Clause itself. It was introduced in the constitutional negotiations of 1982 as a quite defensible compromise feature of the Charter, both to avoid the kind of juridical absolutism that has caused so much grief in the United States, and to preserve the democratic powers of the provinces from oppressive federal centralization.
Even if one intensely dislikes some specific application of the Clause, that does not demonstrate that Canada would be better off if it could somehow be rescinded, unlikely in any case. Individual citizens or groups of citizens in functioning democracies may quite often find themselves disliking particular laws introduced by elected governments. including ones that they voted for. But that dislike is not alone justification for unlimited opposition, to the point of disobeying such laws. Both in the past and at present, this ordinary requirement can be obscured by deafening cries about ‘rights’, a word with unlimited possibilities for producing insoluble conflicts between clashing interests. It makes more sense to concentrate public support or opposition on the substance of the policies that appear to require the use of the Clause.