Canadian Lawyer

w w w . c a n a d i a n l a w y e r m a g . c o m J A N U A R Y 2 0 1 9 33 "The courts know if they go badly wrong, the notwithstanding clause might be invoked and all things considered, courts would prefer their decisions were respected, not overturned," he says. "Cana- dian courts have mostly avoided creating popular backlash — a difficult task in a polity as diverse as Canada's." Trying to prevent a popular backlash when applying the Charter can be a dif- ficult task, however, in part because there are distinct regional differences across the country, notes Albert. "The notion of Canada as a community of communities — I think that is still true today," he says, referencing a 1979 campaign speech by then-Conservative party leader Joe Clark. "When you are in a country that is a com- munity of communities, it is more difficult to build a connection to a polity." While the use of the notwithstand- ing clause is a valid provincial power, he believes it would be very difficult for any federal government to invoke it because it has never been used previously at that level. "It is a spent power" for the federal government, he says. A lack of enthusiasm for the Charter has not dissipated in parts of western Canada and that is even more so in the current political climate, says Crystal Norbeck, a labour lawyer at Gerrand Rath Johnson LLP in Regina. "It has been an uphill battle" in recent years in Saskatchewan for union rights, she says. The governing Saskatchewan Party has been involved in numerous disputes with public sector unions over proposed wage cuts. "They are playing to the base. How that relates to Charter rights is that I suspect the government is in a position where it believes it can ignore them," says Norbeck. "Part of what is going on in the United States is fuelling this." As well, Charter-related litigation always faces financial obstacles. "You have to have a client that is willing to pursue it. You have to have the means. It is expensive," Norbeck says. The government in Saskatchewan passed legislation last spring to invoke the notwithstanding clause after a Court of Queen's Bench judge ruled its fund- ing of non-Catholic students to attend Catholic schools was unconstitutional. That bill has not been proclaimed into law, however, as the case goes to the prov- ince's Court of Appeal. Politicians picking fights with the judi- ciary is by no means a new tactic, says Lokan. "This exact debate played out in the U.S. with Thomas Jefferson," he says, referencing what led to the landmark U.S. Supreme Court decision in 1803 in Mar- bury v. Madison, which established the scope for judicial review. "There is always political hay to be made" by criticizing the courts, Lokan says. "There may be a slight change [in Canada] in the use of the notwith- standing clause. There is a reasonable debate, not an alarming debate." As well, he says, there are few parallels to the current political situation in the U.S. "Trump is so out there compared to historical norms and other populist governments." Master the law. Canada's leading law school offers a graduate degree in four unique streams: Business Law Canadian Law in a Global Context Innovation, Law and Technology Law of Leadership Apply today. Visit gpllm.law.utoronto.ca Questions? gpllm@utoronto.ca ntitled-6 1 2018-05-25 11:45 AM

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