Chekhov’s Gun

Why Dwight Newman’s defence of the Charter’s notwithstanding clause is unpersuasive

Anton Chekhov liked to say that “one must never place a loaded rifle on the stage if it isn’t going to go off”. And conversely, once the rifle is part of the set, then go off it must. But must this theatrical directive apply to constitutional law? Some evidently think so―at least when it comes to the “notwithstanding clause” of the Canadian  Charter of Rights and Freedoms. Dwight Newman in a National Post op-ed, and Gerard Kennedy in a post for Advocates for the Rule of Law, are the latest of those who have ventured this opinion in the wake of Saskatchewan’s decision to invoke the “notwithstanding clause” to continue funding the education of non-Catholics at Catholic “separate” schools, despite a court finding that this is unconstitutional. Their arguments are no more persuasive than those I considered in my previous post on this topic.

Professor Newman notes that “[t]he notwithstanding clause was a vital part of the constitutional negotiations that led to the Charter being adopted in 1982. Without it, some provinces were unwilling to come on board.” In his view, “[t]hose who argue that the notwithstanding clause is somehow illegitimate actually bear the onus of explaining how the rest of the Charter would be legitimate without it”. But the fact that the existence of a legal power was a necessary part of a constitutional compromise does not justify the use of such a power. The federal power of disallowance over provincial legislation was a necessary part of the compromise that made Confederation possible, yet using it now would violate a firm constitutional convention. Does Professor Newman think that opposing the use of this power involves thinking that sections 91 and 92 of the Constitution Act, 1867 are illegitimate too?

Professor Newman adds wants to bolster the propriety of using the “notwithstanding clause” by pointing out that “[i]t tracked a similar clause in the 1960 Canadian Bill of Rights … and was an important clause in bringing together different constitutional traditions”. Yet although they are worded similarly, section 33 of the Charter and section 2 of the Canadian Bill of Rights have very different functions. The Charter‘s notwithstanding clause makes it possible to deny some of its provisions the status of Supreme Law that they would otherwise have by virtue of subsection 52(1) of the Constitution Act, 1982. By contrast, the notwithstanding clause of the Canadian Bill of Rights serves to protect it against implied repeal by subsequent legislation, and thus to elevate what would otherwise be an ordinary statute to what has been described as “quasi-constitutional” status. Though they can both be described as reconciling the protection of individual rights with Parliamentary sovereignty, the two notwithstanding clauses are thus motivated by opposite concerns. That of the Canadian Bill of Rights is rights-protecting; the Charter‘s is legislation-protecting.

Professor Newman makes some substantive criticisms of the court decision Saskatchewan wishes to override. I hope that I will be able to return to them later on. Suffice it to say that I am still of the view, expressed here, that the decision on the issue of religious freedom was quite obviously correct. Professor Newman also claims that those who criticize Saskatchewan’s use of the notwithstanding clause “miss the realities of governing”―notably the need to prevent the uncertainty about the eventual application of the court decision, indeed the “chaos” that would result from its application. Of course, uncertainty is not eliminated, but merely postponed by invoking the notwithstanding clause, which has to be renewed every five years. More importantly though, as I have already explained, the government has a way to avoid creating “chaos” while complying with the constitution. It only needs to fund all non-public schools equally, without discrimination in favour of Catholic ones.

More importantly still, the “realities of governing” objection, and the concern about uncertainty, could be applied to any number of Charter decisions. Uncertainty has followed the Supreme Court’s decisions declaring unconstitutional the blanket ban on assisted suicide and extreme trial delays, for instance, to name only two. If uncertainty, or public concern, is enough to set aside a judicial decision about rights, then we should drop the pretense of having a judicially enforced Charter of Rights, and go back to the good pre-1982 days of Parliamentary sovereignty. Mr. Kennedy is perhaps more forthright about this, arguing that anyone “who seeks to have a court expand”―or simply declare―”the meaning of Charter rights must be prepared to have the scope of those rights subsequently narrowed by the legislature”.

This is really the heart of the debate. Do we want a judicially enforced constitution, or should we go back to Parliamentary sovereignty? I’m not saying, by the way, that turning the clock back to 1982 would be some sort of catastrophe. Canada was a free country in 1982―albeit a free country where the Lord’s Day Act was good, unassailable law. New Zealand, which does not have rights protections enforceable against Parliament, is a free country, freer than Canada in some ways, though not in others. I think that abandoning judicially enforced rights would be a step backwards, which is why I am so critical of those who want to do it, but it would not be a step into the abyss.

But even though it would not be a crazy thing to do, giving up on judicial enforcement of constitutionally guaranteed rights would involve a substantial change to our constitutional arrangements. Professor Newman claims that those opposed to the use of the “notwithstanding clause” “may be wedded to a different vision of Canada—one oriented only to individualistic rights”. But in truth, however exactly we count them, uses of the “notwithstanding clause” have been a marginal phenomenon for 29 years, ever since Québec gave in to nationalist protests to prevent the use of English in advertising. Professor Newman’s individualistic dystopia is actually our reality. It is he and his fellows, not Andrew Coyne or I, who are “wedded to a different vision of Canada” from that in which we live.

Ostensibly, Professor Newman and Mr. Kennedy might not see themselves as advocating a complete de facto reversal of the 1982 constitutional settlement as it has been implemented by political actors as well as courts over 35 years. They might think that they are only defending occasional uses of the notwithstanding clause in response to particularly problematic judicial decisions. But as I’ve explained before, I do not think there is a tertium quid, some sort of happy Canadian middle ground between Parliamentary sovereignty and judicial enforcement of constitutional rights. If the norm against using the notwithstanding clause disappears, then it will be used proactively, profusely, and promiscuously. Like the Saskatchewan government now, others will use it whenever they think their policy ends justify the means, without paying attention to the rights the constitution is supposed to protect.

As Chekhov knew, placing a loaded rifle on the stage creates an unstable situation. A good dramatist will resolve the instability with a bang―and probably some casualties. But constitutional actors are not comedians. Even if they are put in a position where a loaded gun is within their reach, their responsibility is not to fire it, but to keep it safe if they cannot unload it, and to instruct those who follow them to do likewise. As for constitutional critics, they should not be cheering for the most theatrical resolution. They might enjoy a drama, but when the shots are fired, they are likely to be aimed at the audience.

Author: Leonid Sirota

Law nerd. I teach constitutional law at the Auckland University of Technology Law School, in New Zealand. I studied law at McGill, clerked at the Federal Court of Canada, and then did graduate work at the NYU School of Law.

5 thoughts on “Chekhov’s Gun”

  1. There’s a considerable amount of ink (or electrons these days) being expended trying to justify this, and a good deal of it seems to be coming from people who on any other day of the week would be constitutional originalists.

    That being said, I have read an opinion that invoking the Notwithstanding Clause may not even be possible, due to the amendment to the BNA Act via Section 17:

    17. Section 93 of the Constitution Act, 1867 shall apply to the said province, with the substitution for paragraph (1) of the said section 93, of the following paragraph:-

    “(1) Nothing in any such law shall prejudicially affect any right or privilege with respect to separate schools which any class of persons have at the date of the passing of this Act, under the terms of chapters 29 and 30 of the Ordinances of the North-west Territories, passed in the year 1901, or with respect to religious instruction in any public or separate school as provided for in the said ordinances.”

    (2) In the appropriation by the Legislature or distribution by the Government of the province of any moneys for the support of schools organized and carried on in accordance with the said chapter 29, or any Act passed in amendment be no discrimination against schools of any class described in the said chapter 29.

    (3) Where the expression “by law” is employed in paragraph (3) of the said section 93, it shall be held to mean the law as set out in the said chapters 29 and 30; and where the expression “at the Union” is employed, in the said paragraph (3), it shall be held to mean the date at which this Act comes into force.”

    There is a good deal of bluster surrounding the Court’s ruling on the Charter violation, but the Notwithstanding Clause is limited purely to some of the Charter rights (democratic rights, for instance, are walled off). I have to believe the Premier has been informed of this, but there’s nothing a populist politician loves better than a scapegoat.

    1. I’ve this argument about the Saskatchewan Act, and I think it makes no sense. Nobody says, and the court certainly did not find, that the Saskatchewan Act *prevents* the province from funding non-Catholics. The province argued that it the S.A. *required* it to fund non-Catholic as well as Catholic students in Catholic schools, and if that were so, the Charter wouldn’t apply at all, so no need to use s 33. The court found that there was no requirement to fund non-Catholic students; the S.A. has nothing to say about them. From that point on, it becomes a Charter case under ss 2(a) (religion) and 15 (equality), and the notwithstanding clause is applicable to both of those. As matter of law, the government is within its rights. Political morality is another story.

  2. More frequent use of s. 33 wouldn’t be a return to the pre-1982 world. As long as legislatures didn’t use s. 33 pre-emptively across the board, and as long as they didn’t *always* respond to decisions striking laws down by invoking it, and did not *always* extend it when the sunset provisions were up, we would still have quite extensive judicial review of legislation. We would just have an out where there was a firm enough public consensus that the court was wrong.

    Indeed, arguably (if paradoxically), if the use of s. 33 became more common, we might end up with *more* judicial review of legislation, since it would be easier for the courts to respond to government arguments about the terrible consequences of overturning legislation by responding, “If that’s what you think, use s. 33.” There was a hint of this in the SCC decision to grant an extension of its suspension period for the assisted dying decision, when Justice Brown during oral argument pointed out that if the Trudeau government needed more time, it could introduce a bill using the notwithstanding clause.

    I am not going to comment about the Saskatchewan case, but the use of the notwithstanding clause might be particularly appropriate pending lengthy processes of appeal, instead of judicial stays. There is nothing stopping a legislature from using s. 33 with a sunset when all appeals have been exhausted.

    In my view, the design problems with s. 33 are that (a) it can be applied pre-emptively and (b) it doesn’t require a super-majority. The sunset and renewal aspects are great, if you think the courts and rights adjudication can be good things, but at the end of the day the last word should be with representative institutions.

  3. I think it is interesting you asked, “Do we want a judicially enforced constitution, or should we go back to Parliamentary sovereignty?” From an originalist perspective, the legal issue is not what “we” want, but what bargain was struck in 1982. And that bargain definitely has a judicially-enforced constitution (as indeed there was before 1982, dicta to the contrary being misguided), but it also provides legislatures the “last word” in respect of most Charter issues, subject to the sunset provision.

    Now that legal question is completely separate from the political issue of whether it is a good idea for legislatures to use that option. Both legislatures and courts are going to make mistakes, so the first principle would seem to be that the legislature should only override courts when the court is wrong and the legislature is right. Of course, people disagree about that, but if a legislature overrides a court decision, then it makes sense for the supporters of the court decision to oppose the re-election of the government not on the grounds that it exercised the override, but that it did so in a bad cause.

    But you are going even further and saying the legislature shouldn’t use the override, even if you disagree with the court and support the legislature (as I believe is the case with the s. 2(d) public sector collective bargaining cases). Here I wonder what your argument is. If you think the post-Health Services cases are profoundly misguided, why shouldn’t a legislature override them when it thinks it is in the public interest?

    In this case, Saskatchewan and the Federal Government could bilaterally agree on a constitutional amendment: what’s the profound difference between that and the override?

    It must be that you think in doing that, it would undermine a norm of not interfering with court decisions in cases you do like. But sooner or later, somebody has to have a final decision. Tiny groups of well-informed people and huge groups of ill-informed people have their advantages and disadvantages as decision makers. I suspect in the long-run, the huge group of ill-informed people is a better locus of final decision making, but I accept that this is difficult to prove one way or the other. I also think that without some outlet for really powerful political passions, the effect will just be to politicize the final court of appeal, the final end point of which the SCOTUS is rapidly approaching.

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