The tragedy of Doug Ford looks less like a tragedy after all, with the Court of Appeal for Ontario staying the decision of Justice Belobaba that ruled Ford’s planned council cut unconstitutional. The use of the notwithstanding clause is off the table, for now. But it would be hasty to move on too quickly. How academics and lawyers spoke about the planned use of the notwithstanding clause provides a window into how we justify and critique the use of state power.
For example, some 80 law school faculty across Canada came out against the Ford government’s planned invocation of s.33 of the Charter of Rights and Freedoms in an open letter. The faculty, relying on a strong-form version of originalism (original intent, long outdated as a form of originalist reasoning), argue that Premier Ford transgressed the intention of the Charter’s framers:
The framers of the Constitution included the notwithstanding clause as a compromise to achieve consensus. But, they firmly believed that the notwithstanding clause would only be used in exceptional circumstances. This has indeed been the case since the Charter’s enactment in 1982.
If the excerpt above seems an insignificant part of the letter, the faculty use the original intent of the (yet undefined framers) to define a political norm that governs the frequency of use of the notwithstanding clause.
In 36 years, the notwithstanding clause has rarely been used. Liberal governments, NDP governments and Conservative governments at the federal and provincial levels have all been extremely reluctant to use the notwithstanding clause. Faced with judicial decisions declaring legislation unconstitutional, governments in Canada have sought alternative ways of bringing their laws into compliance with the Charter. This is precisely what the framers of the Constitution had hoped and predicted. The notwithstanding clause was only to be used in the most exceptional circumstances.
The faculty, to their credit, do not attack the legality of Ford’s planned use of the notwithstanding clause. So long as the form requirements are met, the notwithstanding clause can be invoked. Rather, they seek to define, using framers’ intent, the political boundaries that should govern this extraordinary power.
At first blush, I agree that the invocation of the notwithstanding clause should be subject to political norms and should be critically examined by citizens. There should be a justification of the use of the notwithstanding clause. This is different from the sort of legal restriction on statutory decision-making explained in Roncarelli v Duplessis. In an administrative law sense, state power is subject to the law, and the exercise of powers contemplated by statute are controlled by that statute. That analogy is ill-fitting for a power unrooted to statute that exists in the text of Constitution itself. Nonetheless, one can meaningfully argue that a political norm of justification should accompany the use of the override. As I’ve said in this space before, Premier Ford has failed on this score.
The interesting part of the faculty letter, though, is not the substantive argument. Rather, it is the analytical footpath. The faculty seek to call up the live hands of Jean Chretien et al who “framed” the Charter to support their point of view. In fact, Chretien, former Ontario Attorney General Roy McMurtry, and former Saskatchewan Premier Roy Romanow (the individuals who bartered the notwithstanding clause into the Charter through the famous Kitchen Accord) have come out to say that the notwithstanding clause should only be used “in exceptional situations, and only as a last resort.”
It is surprising that a fairly large contingent of the Canada law professoriate endorse the proposition that the intent of the framers should mean anything in this case. Others have written about the problems with original intent originalism—determining the class of relevant “framers,” determining how to mediate between different intents among these “framers,” determining the level of generality at which intent is expressed, and the list goes on. These practical problems underline a broader theoretical problem–why, in a normative sense, should the views of Jean Chretien et al bind us today? How can we be assured that these “framers” are speaking on behalf of the meaning adopted by Parliament and the legislatures?
Even if we should accept that this intent leads to the acceptance of the relevant political norms, there is no evidence offered in the letter that other potential “framers” of the Charter shared the view of Chretien, Romanow, and McMurtry as to the use of the notwithstanding clause. For example, Brian Peckford (former Premier of Newfoundland who apparently presented the proposal of the provinces to Prime Minister Trudeau), wrote a piece arguing that Premier Ford’s use of the notwithstanding clause was perfectly appropriate. He made no mention of any understanding or political commitment on the part of any other Premiers or parties as to the expected use of the notwithstanding clause. In this sense, the framers’ intent means nothing; it is dead in terms of helping to interpret even the political norms surrounding the use of the notwithstanding clause.
This is a dangerous form of originalist reasoning adopted by the faculty, and should be used sparingly with appropriate caution. It is open to abuse. Lawrence Solum argues that theories of originalism have two features (1) fixation and (2) constraint. That is, the meaning of a constitutional provision is fixed at the time of framing; and in terms of original meaning originalism, the original public meaning of the constitutional text constrains the constitutional practice of courts. To my mind, the sort of originalism relied on by the faculty fails to both fixate and constrain constitutional meaning, precisely because there is at least an open question as to the expected legal and political practice of the notwithstanding clause. There is even a question as to who should fit into the relevant class of framers, and who should not. In this sense, the form of originalist reasoning invited by the faculty is not, in substance, different from living tree constitutionalism—unfixed and unconstrained. It is an invitation to dress up the desired political outcomes of its proponents with the imprimatur of a legal doctrine.
Putting aside the faculty focus on political norms, if framers’ intent is accepted as an appropriate doctrinal model, the debate in courts will focus on which particular framers support one side of a case or another. Will some lawyers introduce affidavit evidence from Jean Chretien? Another side, Brian Peckford? Rather than focusing on the meaning of words in their context—their original meaning—framers’ intent will incentivize lawyers to spin historical tales, told through the intent of those whose view may not actually represent the state of the law.
That said, we shouldn’t bristle at the opening provided by the faculty. There is, perhaps for the first time, a willingness to accept forms of originalism. If the faculty intended to fix the constitutional political practice of the notwithstanding clause at the time of framing, that intent is better vindicated by original meaning (to the extent it can be discerned) precisely because it fixes and constrains. Of course, a rational person would rather bet on a system of rules that prevents political hijacking of legal interpretation, because political power can be wielded in any direction. A safer gamble—a better methodology—is a form of doctrine less amenable to political reasoning. Given the faculty acceptance of some model along these lines, I look forward to seeing how a focus on fixation and constraint can influence other areas of the Charter.
Double Aspect 
I read with interest your comments.
If there were to be any conditions , they would have been in Section 33.
There was no specific understanding at the time of this formulation except that there was a general realization that by its very nature the section would not be frequently used. But it was also clear that it was available and would be used when a Premier felt it was in the Provincial interest to do so. And that was about it. That is why I wrote that Premeier Ford was within his rights and jurisdiction , legal and constitutional , whatever wording one wants to use in this vein The mythogical ‘kitchen accord’ was never seen by any of the Premiers who partipated in the Proposal brought forward by Newfoundland , amended , and approved by the gang of eight, Quebec excepted, then presented to the whole Conference and with some other amendments approved as the Patriation Agreement.
So those who attempt to use ‘intent ‘ —such intent referring to exceptional circumstances and that was understood by the Premiers , however that is to be defined , is just not there, was not there. The five year period was as far as we were prepared to go in the way of restriction on the Section.
Honourable A. Brian Peckford P.C.
I personally think s. 33 was meant to be read exclusively from s. 1, in that it should be used preemptively by the government to pass legislationm that they know/suspect may be counter to the (other sections of the) charter, but justifiable under s. 1. I don’t consider s. 33 as a ‘check’ on judiciary, such that a judicial branch ruling that a law is contrary to the charter rights and also unjustifiable under s. 1, can be overridden by parliament through s. 33.
That is what made me the most uneasy about your party’s use of s. 33.
However, I recognize this is a reading that is not supported by the text, but it is nevertheless how I interpreted how the section was meant to be used.
I appreciate your remark, though would note that I don’t support any particular “party.”
From the beginning when the Charter was proposed Premiers and their Administrations were concerned about the potential for wrong headed interpretations of it . The Charter would never have ‘passed’ without Section 33. And given the Court had recently ruled on Trudeau ‘s unilateralism as unconstitutional we knew that we had the numbers to insist on its inclusion.
Thank you for your comment, and your important and unique insights and contributions on this topic.
Thanks.