Thursday, March 04, 2004


As mentioned below, discussion with the Associate Deputy Minister of Justice turned at one point to the notwithstanding clause and the relative merits of its potential use. Prof. Ed Broadbent, who was a one time leader of a federal party and is again running for election to the house of commons, discussed situations in which he would use section 33 of the Charter.

Specifically, Broadbent said that he would have moved to invoke section 33 in response to the 1995 Supreme Court ruling on the federalTobacco Products Control Act (TPCA). The Act had banned almost all types of advertising by tobacco companies. While the court unanimously ruled that the government did have the right to regulate tobacco advertising in particular ways the majority held that the government had failed to demonstrate that the restraints in the TPCA regarding advertising, promotion and labelling were reasonable and justified restrictions on freedom of expression.

Broadbent was certainly opposed to this Supreme Court ruling and said that he would have invoked the notwithstanding clause to by-pass it. He argued, as I understood it, that banning tobacco advertising was a reasonable social policy that governments should be permitted to take in protecting the health of its citizens. He felt the common good, and the right of the government to promote it, outweighed the value of free expression of a corporation.

One student argued that the use of the notwithstanding clause once would make it easier to use in the future and begin a trend of its use by the federal government (which has never invoked it). Broadbent dismissed the 'slippery slope' argument as he has in class before. He thinks there's no reason why we can't evaluate situations on a case by case basis and sees no reason why one decision to invoke the clause should necessarily lead to more. In one sense I agree with him (on the slippery slope argument). One use of the clause does not necessarily mean it will be used again. I think we do have the reasonable ability to decide that in one case the clause was necessary while in another it may not be. At the same time the difference between never having used the clause and even using it once, is huge.

Ms. Dawson, the associate deputy minister, did not come out directly against the use of the clause but she did argue that use of the clause could make governments less careful in drafting legislation. She noted that since the passage of the Charter, all legislation goes through rigorous Justice Department scrutiny to insure it is 'Charter proof.' She feels this is a good thing, and I agree, because it forces the government to consider all of the legal rights implications of its legislation. Ms. Dawson felt that if the clause began to be used more often and was seen as a more legitimate option, governments may become more sloppy in the drafting of their legislation. Broadbent agreed that this was a valid concern but wasn't backing down.

Personally, I would agree with the decision of the court. I don't see how we can legitimately ban all advertising from companies that produce a legal product. If it is legal to sell it should be legall to promote selling it. There are lots of other products on the market that cause many thousands of deaths each year (cars and alcohol come to mind) and we might regulate their advertising but we don't ban it. The harm of the product all depends on how people use it, which is largely their own decision. Alcohol producers, and car companies shouldn't be advertising dangerous use of their products but they should be allowed to advertise; same deal with tobacco. Broadbent argued that any use of tobacco was inherently dangerous and the government therefore had a right to control it. It seemed a little paternalistic to me.

On the nothwithstanding clause I think it is useful as a potential check on a reckless judiciary, but I can't think of a past Supreme Court decision I would have used the clause to overturn.

Posted by Matthew @ 2:06 PM