Devaluing Section 33

Here is a little puzzle I have thought of when reading an intriguing Policy Options post by Grégoire Webber, Eric Mendelsohn, and Robert Leckey. Their argument, in a nutshell, is that the invocation of section 33 of the Canadian Charter of Rights and Freedoms, the notorious “notwithstanding clause” by a legislature ― for example, by Québec’s legislature enacting
Bill 21, an anti-religious dress code ― does not prevent the courts from pronouncing the statute to which it applies contrary to the Charter. The “notwithstanding clause” does not insulate the statute from judicial review, but merely means that the statute continues to operate regardless of that review’s outcome. I am tentatively inclined to agree, and may have more to say on this soon. But for now, I want to raise a somewhat different issue.

If Bill said that public servants guilty of wearing religious symbols are to lose their jobs, or that overtly religious persons cannot be hired for the positions to which clause 6 applies, then that rule would be protected by the “notwithstanding clause”, and so would be its straightforward application. But in fact Bill 21 does not itself specify what happens if its prohibition, in clause 6, on “wearing religious symbols” is disregarded. Rather, clause 12 merely provides that “[i]t is incumbent on the person exercising the highest administrative authority” over those to whom that prohibition applies “to take the necessary measures to ensure compliance”. The taking of those necessary measures would presumably be an administrative decision, subject to judicial review. And this is where things get interesting, in the sordid way in which anything having to do with judicial review of administrative decisions is interesting.

In a sane system of judicial review of constitutionally suspect administrative decisions ― like the one set out in Slaight Communications v Davidson, [1989] 1 SCR 1038 ― a decision to discipline, and eventually to dismiss, a public servant for breaching the prohibition on wearing religious symbols would, I think, have to be valid, so long of course as Bill 21 is protected by the “notwithstanding clause”. Such a decision is impliedly authorized by the statute, so to challenge its constitutionality one would need to challenge the statute itself, and the “notwithstanding clause” means that, whatever other consequences that challenge may have, the statute continues to operate.

But we no longer have a sane system of judicial review of administrative decisions that raise Charter issues. (I should make clear that I have grave misgivings about Slaight‘s correctness on the merits; it is only its approach to judicial review that I approve of.) What we have, instead, is the approach first set out in Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395, under which the issue is not whether an administrative decision is authorized by a statute interpreted so as to comply with the Charter, but whether it gives as full an effect to “Charter values” in light of the statute’s objectives. How the “notwithstanding clause” fits into this scheme is not at clear.

The question is, does the application of the “notwithstanding clause” to a statute suspend the application of “Charter values” to decisions authorized by that statute? And the answer to that question is by no means obvious. Doré itself, of course, is silent on the matter, as are its successors Loyola High School v Quebec (Attorney General), 2015 SCC 12, [2015] 1 SCR 613 and Law Society of British Columbia v Trinity Western University, 2018 SCC 32, [2018] 2 SCR 293. So too is the text of section 33 of the Charter, which speaks of legislation “hav[ing] such operation as it would have but for the provision of th[e] Charter” (emphasis mine) in respect of which section 33 is invoked. The Charter says nothing about “values”.

Are these values the same as Charter rights, in which case they might be ousted along with the “provisions” muted by the invocation of the “notwithstanding clause”? The cases at least suggest otherwise. In particular, in Loyola, the majority spoke of “Charter protections” as a category encompassing “values and rights” [35; emphasis mine], suggesting that values and rights are different. It added that “Charter values [are] those values that underpin each right and give it meaning”. [36] And so, one might at least make a serious argument to the effect that the values remain intact regardless of the temporary inapplicability of the Charter‘s provisions (and rights), and that Doré‘s injunction that “administrative decisions are always required to consider fundamental values” [35; emphasis in the original] remains in full force, notwithstanding the “notwithstanding clause”.

The reluctance of the framers of Bill 21 to spell out, in the legislation itself, the unpalatable consequences they presumably intend, combined with the perverseness of the administrative law doctrines endorsed by the Supreme Court, may thus result in the nullification of one of the bill’s most significant features ― its attempt to exclude judicial scrutiny. I hope that no one doubts my distaste for Bill 21. I have denounced its illiberalism here, arguing that Quebeckers ― and the rest of us ― need to stop fearing “the way in which others might use their liberty if we do not preemptively coerce them”. And I have myself defended what some might think of as a workaround designed to challenge the constitutionality of Bill 21 despite its invocation of the “notwithstanding clause”. And, more broadly, I have long argued that the “notwithstanding clause” would be best left untouched. But I cannot say I find the idea of relying on “Charter values” to subvert the invocation of the “notwithstanding clause”, even one as distasteful as Bill 21’s, especially satisfactory either. The whole concept of “Charter values” is a figment of the judicial imagination, and it usually serves, no matter the protestations of the TWU majority, to water down constitutional rights and to subvert the authority of the supreme law more broadly.

One should note, also, that even if the argument that Charter values continue to apply despite the “notwithstanding clause” is successful, there would remain the issue of weighing these values against statutory objectives. I will not say much about this here, beyond observing that there is glaring conflict between the ostensible aims of Bill 21 as a whole, stated in its clause 4, which are “(1) the separation of State and religions; (2) the religious neutrality of the State; (3) the equality of all citizens; and (4) freedom of conscience and freedom of religion”, and its real aims, and in particular, the aim of the ban of wearing religious symbols. I am not sure how a court would deal with this, but here again the reluctance of the framers of of Bill 21 to forthrightly admit that they are trying to simply purge Québec’s officialdom of overtly religious individuals may well open a space for judicial subversion.

It may yet be, then, that the story of Bill 21 will turn out to have something that will look, from the standpoint of the protection of individual rights, more or less like a happy ending. But we should not let ourselves be deceived. Two wrongs do not make a right. One can hardly make up for the Québec legislature’s unwillingness to be bound by constitutional law by exploiting similar unwillingness on the part of the Supreme Court. And maybe, just maybe, the court would in fact recoil before the prospect of following the implications of the Doré line of cases all the way to the nullification of section 33 of the Charter. Who knows ― they might even seize the opportunity for getting rid of Doré and restoring some sanity to the Canadian law of judicial review.

To be honest, I’m not sure which outcome is more desirable. On the one hand, I want to see Bill 21 undone. On the other, although the Québec legislature would have no cause for complaint if it is tripped up by its own cowardice, those of us who care about the Rule of Law could not happy by its further subversion, even if we like the immediate results. But then again, I have the luxury of worrying about the Rule of Law from a distance. Those personally affected by Bill 21 may feel differently about this.