Peter MacKay and the Notwithstanding Clause

March 28, 2014

In February Liberal Justice Critic Sean Casey submitted a written question to the government inquiring about any Conservative policies regarding the use of the Charter’s notwithstanding clause.

By way of back ground section 33 of the Charter – the ‘notwithstanding clause’ – allows governments to override Charter protections to render unconstitutional laws legal.

This is an exceptional power that has never been used by the federal government.

Casey’s question was very relevant given the Conservative history of legislation that has been found to violate the basic rights and freedoms guaranteed by the Charter.

Mr. Casey wanted to know:

With regard to Section 33 of the Canadian Charter of Rights and Freedoms:

(a) what is the current policy of the government, particularly the Department of Justice, about the use or invocation of Section 33; and

(b) since 2006, how many times has the government directed, suggested, contemplated or analysis, examination or consideration from departmental officials within the Department of Justice, the Privy Council Office, or any government department, about the possible use of Section 33?

The government’s written response, signed by MacKay himself, said:

(a) The Department of Justice has no policy on the use or invocation of section 33 of the Canadian Charter of Rights and Freedoms commonly referred to as the “notwithstanding clause”. To date, Parliament has never made a legislative declaration pursuant to section 33, although certain provincial legislatures have done so.

A very clear answer – there is no policy and the clause has never – ever – been used by Parliament. 

The government refused to answer Casey’s second question. 

This week, in question period, Casey followed up – asking why the government would not answer the second part of his question.

MacKay’s response was very troubling, he said:

Mr. Speaker, I have no idea why the member is insisting on the government examining the use of the notwithstanding clause, unless it is based on the fact that it was his government, his party, that was only one who ever used it. Maybe the member has a propensity for the use of the notwithstanding clause.

MacKay alleged that the Liberals had used the notwithstanding clause to override the Charter – a stunning allegation – and one that is simply not true.

MacKay’s answer was in direct contradiction to his prior written response to Casey’s question. 

Both of MacKay’s answers cannot be true.  

Former Liberal Justice Minister Irwin Cotler quickly corrected the record, he said:

Mr. Speaker, on a point of order, in response to the question of the member for Charlottetown, the Minister of Justice said that the Liberal government had invoked the notwithstanding clause.

I just want to say that the Liberal government did not invoke the notwithstanding clause.

Only when his lack of factual accuracy was made clear did MacKay attempt to correct the record:

For clarity, I wish to ensure that my answer did not imply that the Liberal government of the day “invoked”, which is the word that the member used, the notwithstanding clause, but threatened to use it.

MacKay’s original answer did not ‘imply‘ that the Liberals had overridden the Charter – MacKay explicitly said that they had done so.

Yesterday Casey continued to press MacKay about his misleading statements in the House:

Mr. Speaker, I rise on a question of privilege pursuant to Standing Order 48, to allege that the Attorney General of Canada and justice minister misled the House yesterday during question period. We cannot accept a situation where the chief legal officer, the Attorney General of Canada, would rise in this place and, in response to a direct question put to the minister, mislead the House by making statements that are demonstrably untrue.


We have before the House two statements made by the same minister that are directly in conflict with each other. It cannot be said that this was an error because one statement had been made some time ago, thus attributing it to poor memory. I sincerely hope that this is not a situation where the minister does not know the facts regarding the history of the use of the notwithstanding clause.

MacKay’s conflicting statements are not the first time the Conservative have allegedly mislead the House. 

Conservative MP Brad Butt – who stood accused of knowingly misleading the House – in relation to the so-called Fair Elections Act.  Butt told the House that he had personally witnessed voter fraud during the 2011 election.

It seems Butt made this statement  to provide some justification for the much maligned Conservative election legislation.

Butt retracted his statement after a significant period of time and only after his claim was proven to be false.  The Conservative blocked attempts to hold Butt to account for his misstatement.

More recently Conservative MP Pierre Poilevre has come under fire for his defense of the governments Fair Elections Act. 

In justifying the need for new election laws Poilevre has made extensive use of a 2013 Elections Canada Report.  The author of the report has accused Poilevre of “selectively reading and quoting from my report” and ignoring the recommendations”.

MacKay’s latest statements seem to form part of a systemic governmental modus operandi – obfuscate, deflect, and demonize in an attempt to muddy the political waters.

There are only two explanations for Mackay’s statements.

Number one – he attempted to mislead the house.

Number two – he did not attempt to mislead the house but was grossly ignorant and swept away with petty partisanship.

Unfortunately for the Conservatives and MacKay – either of these opinion is simply unacceptable and unbecoming of a Member of Parliament.