Over at Ius et Iustitium, Kerry Sun, Stéphane Sérafin, and Xavier Foccroulle Ménard (I shall refer to them collectively as SSM) have a new addition to the rather stale menu of notwithstanding clause apologetics: a post that attempts to justify legislative override of the Canadian Charter of Rights and Freedoms as a form of “common good constitutionalism”. SSM write
that the notwithstanding clause should be viewed as enshrining a form of coordinate interpretation. Under this approach, ideally, the invocation of s. 33 may be contemplated in those cases where a legislature seeking to advance the common good reasonably disagrees with the judicial interpretation of a rights provision
Except for the invocation of the “common good”, this is the usual fare. Legislatures are supposed to have their own views about what Charter rights mean and entail, and are justified in imposing these views on the citizens. Joanna Baron and Geoffrey Sigalet made one such argument over at Policy Options a couple of years ago (I critiqued it here), and more recently Professor Sigalet made a similar case in a National Post op-ed with Ben Woodfinden.
But the addition of the “common good constitutionalism” sauce is noteworthy. So far as it is possible to define, “common good constitutionalism” is a branch of right-wing anti-liberal thought which seeks to re-establish constitutional law on foundations ostentatiously grounded in traditionalist ideology and/or medieval natural law, and thereby to make it serve the general good, as understood by its exponents. In substance, “common good constitutionalism” often amounts to a celebration of political power at the expense of the rights of minorities. In form, it distinguishes itself not only by the aforementioned ostentatious traditionalism or medievalism, but also by its a refusal to seriously engage with non-adherents to the doctrine. (Its celebrity chef, Adrian Vermeule, is notorious for blocking people who have not attacked or sometimes even interacted with him on Twitter.)
Unfortunately, these traits are all present in SSM’s post. I address a number of specific faulty arguments it makes below, but first let me note that ― remarkably for a piece of scholarly writing ― it never quotes or even cites the people it disagrees with. They are merely nameless, faceless “critics” of this or that, and the only source SSM refer to for their views is the not-at-all critical op-ed by Professor Sigalet and Mr. Woodfinden linked to above. Mr. Ménard tries to make a virtue out of this in a subsequent Twitter exchange with Emmett Macfarlane, candidly admitting that he would “rather cite jurists who share” his fundamental premises “than political scientists with whom I share piecemeal views. It makes for better scholarship”, he says. No, it doesn’t. Participants in scholarly debate should endeavour to bring their opponents’ best arguments to their audience’s attention. Those who fail to do so risk becoming propagandists, no matter how many footnotes their writings include.
The entrée for SSM’s paean to the notwithstanding clause is the enactment by the Ontario legislature of the Protecting Elections and Defending Democracy Act, 2021, which invokes s. 33 of the Charter to override the decision of the province’s Superior Court of Justice in Working Families Ontario v Ontario, 2021 ONSC 4076. I will eventually post a detailed analysis of the Court’s decision, but as I have already noted in The Line, its conclusion is self-evidently correct. Section 1 of the Charter requires limits on the rights it guarantees to be reasonable and demonstrably justified. Yet the Ontario government simply provided no justification for extending the duration of very severe restrictions on the ability of civil society groups to engage in political advertising from six months before the start of an election campaign to a year. It own experts had previously said that the six-month period was reasonable. The law could not stand. But the legislature re-passed it in four days.
SSM’s presentation of the situation is misleading. For one thing, they claim that the “arguments” against Ontario’s legislation were “very similar to those raised in” Harper v Canada (Attorney General), 2004 SCC 33,  1 SCR 827. This is doubly wrong. First, the case actually decided by the Superior Court was focused on the lack of justification for the latest extension of Ontario’s censorship regime, not the validity of such a regime in principle. But even the original dispute about the six-month-long pre-campaign censorship period is far outside the scope of Harper. There the majority invoked the lack of restraint on political speech outside a five-week-long election campaign as evidence of the limited (and hence justified) nature of the restraints during that campaign. SSM further mislead their readers by suggesting that, “[a]s a result of the court ruling, Ontario would likely have no spending limits by unions, corporations, or other third parties in place prior to the next election period, slated to begin in the summer of 2022”. Needless to say, the Ontario legislature could have re-enacted a six-month (or shorter) restriction period just as easily is it re-enacted a year-long one. Its masters in the executive just chose not to do that.
This brings me to another weakness in SSM’s argument. Responding to critics of “the Ontario legislature’s failure to advance a justification for” invoking the “notwithstanding clause”, they insist that “a justification was in fact given in this case: preserving the fairness and integrity of Ontario’s provincial elections”. Leave aside its substantive merits for the moment, and notice the artful use of the passive voice: a justification “was advanced” ― by whom? The text does not say, but the footnote supporting this sentence refers to two sources. One is a passage from the Working Families judgment quoting the Attorney-General’s speech to the legislature about the bill it struck down; it simply has nothing to do with the use of the notwithstanding clause. The other is a news story quoting a statement by a spokesman for the government’s House Leader. Neither, in other words, reflect the legislature’s considered views about the notwithstanding clause. Instead, certainly the former and arguably the latter emanate from the executive rather than the legislature.
Without meaning to, SSM give away the notwithstanding clause defenders’ sleight of hand: while they denounce those who have but “a limited regard for the legislature’s capacity to reason about rights”, they are, in reality, apologists for executive power. Unsurprisingly, they repeatedly speak of the government, not the legislature, invoking the notwithstanding clause. Earlier, they cheerfully note that Premier Doug “Ford’s government controlled the legislature, and so the bill” that expanded the censorship of political advertising before elections “passed with little difficulty”. This all is, of course, of a piece of the “common good” movement’s embrace of executive and administrative power elsewhere. Professor Vermeule, for instance, is an advocate of “law’s abnegation”, as the title of one of his books has it, in the face of the administrative state. SSM themselves defend approaches to legal interpretation that would empower administrative decision-makers instead of holding them to the limits enacted by legislatures.
This power, moreover, is an unbridled one. Recall that, contrary to SSM’s insistence on (legislative) reasoning about rights, the Ontario government advanced no reason at all to justify its expansion of political censorship. To repeat, the Superior Court did not disagree with the government’s justification or rule that it was insufficiently supported by evidence ― though it’s worth pointing out that there never has been any evidence that the integrity and fairness of Canadian elections were compromised by the lack of a year-long gag on the civil society, or even by the absence of the much more modest restrictions upheld in Harper. The Harper majority specifically held that evidence was unnecessary ― a reason, among others, why Harper is one of the Supreme Court’s worst decisions of all time.
Be that as it may, the Working Families court found that there was no justification at all for limiting the freedom of expression of civil society groups for as long as the legislature had. For all that SSM claim to regard “law as a work of reason”, for all their insistence that “[t]hrough a prudent exercise of reason, the law-maker is free and apt to make a practical judgment in choosing among the many alternatives, the many legitimate and reasonable possibilities”, the law they actually extol is an unreasoned power-grab by the executive. By asking us to accept it in the name of reason, SSM show that this rhetoric is just a spice intended to mask the insipid taste of their actual position.
And, for all their contempt for legal positivism and posturing as the heirs to the natural law tradition, SSM are, in truth, asking us to accept the authority of law simply because it has been enacted by the state. They deprecate as simple-mindedly positivistic the view of “legal rights as solely the emanation of judicial decisions”, so that “a Charter right is effectively nullified if the legislature derogates from judicial review via the notwithstanding mechanism”. (SSM never say, of course, who actually holds these views.) For them rights, being emanations of the natural law, exist even if they cannot be enforced through the courts.
But individuals must accept the legislature’s ― or rather, as we have seen, the executive’s ― specification of these rights, even when, as in the case of Ontario’s censorship regime and its use of the notwithstanding clause, the legislature manifestly failed to turn its mind to the right in question. No other reason than the legislature’s authority, and the common good constitutionalists’ naïve believe in its ability to reason, is necessary. And of course, like all notwithstanding clause apologists, SSM trot out the historical fact that it is “part of the Charter and the political settlement that made possible the constitutional entrenchment itself”, as if that can legitimate political actors resorting to it. But that is only so on a nakedly positivist view, where the legality of something is sufficient warrant for its legitimacy.
As co-blogger Mark Mancini and I have previously suggested here and here, SSM’s embrace of common good constitutionalism is superfluous at best, and actively pernicious at worst. If is superfluous if it only serves to provide a baroque vocabulary for warmed-up arguments for in favour of political power and against judicially-enforceable individual rights. It is pernicious if they really mean to embrace the most reactionary views associated with, and sometimes openly embraced by, their ideological fellow travellers.
On the whole, their Ius et Iustitium post is evidence for the former possibility. Little if anything in it could not have been said, and has not been said, without the “common good” sauce. But even stripped of this rhetoric, the argument remains distasteful enough. Citizens ought to defer to the choices executive branch officials, so long as they have been laundered through supine legislatures, because these legislatures in theory could have ― and it doesn’t matter that they actually haven’t ― engaged in reasoned deliberations about rights. Calling something an exercise of reason directed at the common good does not make it so. Tripe is tripe, and a power grab is a power grab.