Charter values – Double Aspect

#LOLNothingMatters

The Supreme Court’s decision to uphold deferential review of administrative decisions that implicate “Charter values” is deeply unserious

I’m a bit late to the debate, I’m afraid, but I did want to say something about the Supreme Court’s decision in Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31, delivered last week. The decision is very significant insofar as it purports to uphold the approach to judicial review of administrative decisions implicating constitutional rights and vibes first outlined in Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395, which had been severely criticized by both judges and scholars of administrative law, and whose validity was specifically left in doubt in Vavilov v Canada (Citizenship and Immigration), 2019 SCC 65, [2019] 4 SCR 653.

Co-blogger Mark Mancini has already explained what was at stake and made many astute observations about the case, in particular about the practical difficulties that are likely to result from it. I will not say much about the substance of the decision, on which I have little to add to my own previous criticism of Doré and its progeny and to Mark’s post, or its consequences. My focus is on SCFTNO’s disregard of legal authority and of the artificial reason of the law on which judges depend for no small part of their authority. Specifically, I will argue that SCFTNO is inconsistent with several important cases or lines of cases, including Vavilov, as well as recent cases on constitutional interpretation and, arguably, even Doré itself. Moreover, Justice Côté’s reasons for the unanimous court do not respond to the academic and judicial criticisms of Doré. In short, they make no effort to integrate the decision into the fabric of Canadian law. They are the work product of a court that does not understand or does not care about law at all.

As most readers will know, SCFTNO was a judicial review of the respondent minister’s refusal to exercise her discretion to allow several children whom section 23 of the Canadian Charter of Rights and Freedoms did not entitle to attend the applicant’s schools to nevertheless do so. This could have been decided simply enough, by pointing to Vavilov’s admonition that decisions that have very significant consequences for the individual concerned must be thoroughly justified and holding that the Minister’s justification was not sufficient. I think there is a fairly strong case for saying that a decision as to whether children can attend school in the language of their parents’ choice is a important one, calling for substantial justification. The case for holding that the reasons were insufficiently responsive would have been a closer one, but not implausible either. But the Supreme Court did not choose the easy route.

Instead, it held that “the Minister was required not only to consider the values embodied in s. 23 in exercising her discretion … but also to conduct a proportionate balancing of these values and the government’s interests”. [8] This is even though all concerned agreed that section 23 as such did not actually apply. Decision-makers, such as the Minister in this case, must consider “Charter values” and balance them against the government’s aims whether or not the rights associated with these values actually apply. For this proposition, Justice Côté cites Doré itself, as well as 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. The courts will then review the decision on a reasonableness standard.

For Justice Côté, this is an easy case. “There can be no doubt about” the duty to consider Charter values “because ‘[t]he Constitution — both written and unwritten — dictates the limits of all state action’”. [65, citing Vavilov [56]] There is, moreover, “no reason to depart from [the reasonableness] standard of review”. [60] But for anyone who’s thought seriously about the issues involved, there are very good reasons for departing from reasonableness review and plenty of doubt about the propriety of forcing decision-makers to give effect to “Charter values”. It’s just Justice Côté doesn’t give a flying flamingo.

Start with deference. The same passage from Vavilov on which Justice Côté purports to rely here insists on correctness review for constitutional issues, though it specifically leaves the consideration of the standard applicable to judicial review of discretionary decisions affecting Charter rights to another day. If indeed what is at stake here is constitutional constraint of administrative discretion, the reasons for correctness review are obvious: the meaning of the constitution is a question for the courts, as Vavilov recognizes for every other context and as the Supreme Court had acknowledged long before. For example, as I noted in the article linked to above,

in Re Manitoba Language Rights, [1985] 1 SCR 721, the Court pointed out that ‘[t]he judiciary is the institution charged with the duty of ensuring that the government complies with the constitution’ and any arrangement whereby constitutional compliance is left to the executive’s discretion “would be entirely inconsistent” with this duty. (7, citing Manitoba Language Rights at (754))

There is more. As I pointed out in that article and as Mark has argued in his own work on this subject, Vavilov pulls the rug from under the justification for reasonableness review that was given in Doré. The argument there had been that administrative decision-makers were experts in applying their “home statutes”, and that expertise extended to the application of constitutional values to the legislation. This was consistent with the rationale for broader judicial deference to the administrative state that the Supreme Court had given in the then-leading case, Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190. But Vavilov rejects expertise as a rationale for deference, and endorses an altogether different one, namely legislative intent. It is not crazy (although still wrong) to suggest that the delegation of decision-making power to officials necessarily implies a delegation of interpretive power over the enabling legislation, which it has enacted, to the exercise of which courts can defer; it is in effect a sort of implied Henry VIII clause (*shudders*).

Yet a legislature cannot require, implicitly or explicitly, courts to defer to the executive’s views about the import of the constitution, no more than to its own: nemo dat quod non habet. If deference in constitutional cases is warranted, this can only be for reasons implicit in the constitution itself. It is worth noting that Nova Scotia (Workers’ Compensation Board) v Martin, 2003 SCC 54, [2003] 2 SCR 504, on which Paul Daly relies for the proposition that administrative decision-makers can consider the Charter specifically explained that this would not endanger the constitutional order because their decisions would be subject to judicial review on a correctness standard.

Thus, deference to administrative decisions implicating the Charter does not sit easily, to put it mildly, with Vavilov and with broader constitutional principle. At a minimum, Justice Côté ought to have explained on what basis such deference is now justified. But she could not be bothered. Instead, she went for the cheap rhetorical trick of claiming that her position was self-evidently right. If she did not see that this was not so, she is a much worse lawyer than I thought. If she did, she wrote in bad faith. I’m not sure which of these alternatives is worse.

Before leaving the issue of the standard of review, it is important to note that, as Mark points out, Justice Côté’s approach to reasonableness review is also inconsistent with Vavilov in two important ways. As Mark explains, “remarkably, it may be a requirement for decision-makers to consider Charter values even where not argued” by the parties. And, to quote Justice Côté again (though Mark makes this point too), while “[a]s a general rule, a reviewing court must not, in assessing the reasonableness of a decision, reweigh the factors underlying the decision”, [71] “the Doré approach requires reviewing courts to inquire into the weight accorded by the decision maker to the relevant considerations in order to assess whether a proportionate balancing was conducted by the decision maker”. [72] This is antithetical to any sensible definition of reasonableness review.

In other words, Justice Côté seems to have endorsed ― nay, required ― disguised correctness review when “Charter values” are at stake, while proclaiming that she “cannot see” why anyone would question the applicability of the reasonableness standard. I don’t know whether to laugh or to cry. This is simply unserious “reasoning”, unless Justice Côté is playing some sort of four-dimensional chess in order to quietly eviscerate deference in the guise of upholding it. More on why she just might be doing that below, but it is worth recalling that, when they play deference chess, judges can only lose, even to themselves.

Consider now the supposedly indubitable administrative duty to consider “Charter values” as part of the executive’s duty of compliance with the “unwritten constitution”. The most obvious thing to note here is that, after Vavilov, the Supreme Court decided Toronto (City) v Ontario (Attorney General), 2021 SCC 34, where the majority purported to cut the unwritten constitution down to size. To be sure, what was at issue there was a constitutional principle, not “Charter values”, and the claim was that the principle could be invoked to invalidate legislation, not just an administrative decision. Perhaps these are important distinctions, though to my mind that is not obvious. And of course I have argued here that City of Toronto itself was not at all convincingly reasoned. Perhaps Justice Côté agrees! But if so, she needs to say this. Instead, once again, she simply breezes past the difficulties and does not even begin to explain how she deals with them.

The broader point is one that Mark makes in his post. The idea that “Charter values” can be used to, in effect, expand the Charter’s protections, or at least (and I’m not even sure about that) some toned-down versions of these protections, to people who, by everyone’s admission do not benefit from them according to the Charter’s text is flatly inconsistent with City of Toronto and with the Supreme Court’s other recent decisions. As I have argued (and as others have noted too), the majorities in these cases adopted textualist and sometimes even originalist approaches to constitutional interpretation, according to which courts ― and, one would have thought, administrative decision-makers too ― are to apply the Charter’s text and not an expanded edition incorporating the Supreme Court’s own idea of what our constitution ought to be. Here, at least, City of Toronto, with its explicit rejection of the use of unwritten norms to expand the deliberately chosen wording of Charter rights seems pretty much on point ― and on more solid ground than in its broader attack on written constitutional principles, since in this it follows British Columbia v Imperial Tobacco Canada Ltd, 2005 SCC 49, [2005] 2 SCR 473.

For this reason, I am not persuaded by Professor Daly’s invocation of a “constitutional settlement” that has embraced “the decentralization of the Canadian Constitution”, by which he means the Supreme Court has allowed administrative decision-makers to decide constitution questions. It’s one thing to say that these decision-makers are required to endeavour to comply with the constitution. It is another, as I note above, to take the further step, as significant as it is indefensible, to demand judicial deference to these decision-makers’ views. But it is a further step still, and no part of a “settlement” as I will further explain below, to say that it is not just the actual constitution that has been “decentralized”, but also the vibes that the courts, and perhaps decision-makers too, feel when they dream about the constitution they would like Canada to have.

Be that as it may, Justice Côté again doesn’t deign to say anything about any of this. One thing she does do throughout her judgment is invoke the specialness of section 23 of the Charter. This provision “imposes positive obligations on the state” and “is therefore meant to alter the status quo”. [2] It also grants collective and not merely individual rights. But section 23 is unique in another way too. It is quite obviously the product of a careful political compromise, granting robust protection to some people and withholding it from others (subject, of course, to legislatures adding similar entitlements by statute, or indeed to the executive doing so in exercising statutorily-enabled discretion). As Benjamin Oliphant and I have noted, both early cases on section 23 and some more recent ones (though admittedly not all) have made a point of noting this origin and held that it ought to have consequences for how this provision is to be interpreted. This is consistent with how the Supreme Court has approached other cases involving positive obligations of the state and collective entitlements, such as British Columbia (Attorney General) v Canada (Attorney General), [1994] 2 SCR 41 (the Vancouver Island Railway Case) and Caron v Alberta, 2015 SCC 56, [2015] 3 SCR 511.

Needless to say, expanding the entitlements created by section 23 to (at least some) people not covered by it upsets the compromise the constitution embodies and is inconsistent with those cases that have emphasized its significance. Once again, Justice Côté says nothing about this, though she does note that the Court is not “endorsing freedom of choice of the language of instruction, a model expressly rejected by the framers under s. 23”. [103] Well, if the choice of the framers of section 23 matters to that extent, why doesn’t it matter in full? On a practical note, when parents in Quebec start relying on “Charter values” to get their children into English public schools, it will be time to get out the popcorn. Justice Côté is trying to caveat her way out of this problem, but that won’t be enough. As the Charter’s framers understood, sometimes you need bright line rules. The Supreme Court’s endorsement of “Charter values” undermines this choice too, as well as that which defined the scope of section 23.

It is surely no accident that an opinion so replete with incoherence, self-contradiction, and disregard of authority fails to engage in any sort of dialogue with both academic and judicial opinion on the issues it decides. I have already noted that I have criticized the Supreme Court’s jurisprudence mandating, or purporting to mandate, judicial deference to administrative decisions affecting rights. So has Jonathan Marynuk, here, and Edward Cottrill. Mark has pointed out that this jurisprudence had no justificatory leg to stand on after Vavilov, and I have made this argument too. Of course, it is a bit greedy to expect the Supreme Court’s to respond to one’s criticism of its decisions, if only in substance (I am not so naïve as to hope for citations). But only a bit. After all, Doré itself purported to respond to academic criticism of the Court’s earlier approach to administrative decisions implicating the Charter.

And even if the Supreme Court’s ignoring unruly academics is to be expected, the Doré framework generally and its reliance on “Charter values” specifically have been called into question by judges too. The best-known examples of this are probably the joint opinion of Justices Lauwers and Miller in Gehl v Canada (Attorney General), 2017 ONCA 319 and that of Justice Lauwers, with Justice Miller concurring, in ET v Hamilton-Wentworth District School Board, 2017 ONCA 893. In the former, Justices Lauwers and Miller point out that

Charter values lend themselves to subjective application because there is no doctrinal structure to guide their identification or application. Their use injects a measure of indeterminacy into judicial reasoning because of the irremediably subjective — and value laden — nature of selecting some Charter values from among others, and of assigning relative priority among Charter values and competing constitutional and common law principles. The problem of subjectivity is particularly acute when Charter values are understood as competing with Charter rights. [79]

These are compelling, or at any rate very serious arguments. Justice Côté has no answer for them.

And there is another noteworthy judicial critic of the Doré line of cases, as persuasive as any and more important than the others by virtue of her office. It is, of course, Justice Côté herself. This is why I suggested above, if only in bitter jest, that Justice Côté might be trying to undermine Doré while purporting to uphold it. Her joint dissent with Justice Brown in Trinity Western cautioned that rights claims are to be disposed of by applying “legal principles that guide the relationship between citizen and state, between private and public. And those principles exist to protect rights-holders from values which a state actor deems to be ‘shared’, not to give licence to courts to defer to or impose those values.” [265; emphasis removed and added] Chief Justice McLachlin and Justice Rowe, whom Mark quotes in his post, also challenged the legitimacy of the use of “Charter values”.

Hence, I do not think that one can speak of a “constitutional settlement” requiring the use of “Charter values”. It’s not just that the Supreme Court cannot effect a settlement that subverts the one reached by political actors who were amending the constitution in accordance with the relevant rules, though it certainly can do no such thing. But it is also, in addition, simply not the case that there existed ― until, seemingly, now ― a consensus on the Supreme Court itself, let alone within the broader judiciary and the Canadian legal community ― to the effect that such a settlement would be desirable or even defensible.

The Supreme Court’s failure to address any of these issues in a decision on a point of fundamental constitutional importance (and one that, whatever Justice Côté may say, was very much not open and shut), is a serious matter. Supreme Courts, as Justice Jackson famously observed, are not final because they are infallible but only infallible because they are final. If they are to have greater authority than that of ipse dixit, they cannot rely on finality alone. They need to engage in a reasoned dialogue with other courts and even, at least on occasion, with academics. They don’t have to agree with us; that much their finality means. But to act as if no one else had views worth considering on the issues they decide is a conceit that risks being fatal to their credibility. #LOLnothingmatters is the maxim of a troll, not a jurist.

The CSFTNO decision is inconsistent with precedent, as well as with constitutional sense, and instead of explaining itself it affects to be self-evidently correct. It refuses to engage with well-reasoned critiques of the precedents it purports to apply, effectively telling the critics, whether academic or judicial, not to bother engaging with the Supreme Court’s pronouncements. After all, even a Supreme Court judge can flip-flop from being a vigorous critic of an idea to its enforcer and not bother giving an account of her change of heart.

Years ago, I wrote here about a symposium I attended about “the responsibility of doctrine”. I took the occasion to discuss the very different, but nonetheless related, ways in which common lawyers and civilians use that word. The key similarity that unites them despite the differences is this:

The important thing about both is that they are the products of, and indeed very nearly synonymous with, collective thinking about the law. La doctrine, as I already mentioned, is a set of writings, a discourse involving multiple authors. … And doctrine is, of necessity, derived from a multitude of judicial decisions rendered over time. A person can be un auteur de doctrine, and a judicial decision can illustrate a legal doctrine, but doctrine and doctrine are both, fundamentally, ongoing conversations.

Justice Côté’s opinion for the Supreme Court in CSFTNO disclaims its responsibility to be part of collective thinking about the law. It is an exercise of unreasoned power, a flex. No number of roadshows can restore the credibility of a court that behaves in this fashion.

More Charter Values Nonsense

When will this end?

Doré, that bedeviling case that held that administrators must take into account “Charter values” when exercising discretion, continues to trouble lower courts. This is not only true on a theoretical level—I still have yet to hear a convincing explanation of what a Charter value actually is—but on the level of applicability. Courts are struggling with the following question: should Charter values apply in the administrative law context whenever a decision-maker interprets a statute, even if there is no ambiguity or discretion? For reasons that I will explain, this distinction between statutory interpretation and discretion is more of an illusion. In administrative law, discretion exists when statutes are ambiguous. Therefore, if one must have regard to Charter values, it should only be in the context of a pure exercise of discretion, where an administrator has first concluded that a statute is truly ambiguous and therefore an administrator has room to maneuver. Where legislation is clear, decision-makers must apply it, unless there is a direct constitutional challenge to the legislation before the decision-maker, and the decision-maker has the power to consider the challenge under the Martin line of cases. If there is any law to apply—ie if the statute is clear after a review of the canons of interpretation—then Charter values have no place in the analysis.

Let’s start with the basics. The hornbook law answer to the problem says that courts—and by logical extension, inferior tribunals—can only take into account Charter values in cases of genuine statutory ambiguity, where this is discretion at play (see Bell ExpressVu, at para 28). Where legislation is clear, administrators should apply that legislation absent a direct constitutional argument raised by an applicant where the decision-maker has power to decide constitutional questions (Singh, at paras 62-63). And yet, the Supreme Court and other courts have sometimes said otherwise, relying on the line in Doré that decision-makers must always exercise their authority in accordance with Charter values (Doré, at para 35), even in absence of ambiguity. Take R v Clarke, where the Court seemed to suggest that administrative interpretations of law are always subject to a consideration of Charter values, even in absence of ambiguity:

Only in the administrative law context is ambiguity not the divining rod that attracts Charter values. Instead, administrative law decision-makers “must act consistently with the values underlying the grant of discretion, including Charter values” (Doré, at para. 24). The issue in the administrative context therefore, is not whether the statutory language is so ambiguous as to engage Charter values, it is whether the exercise of discretion by the administrative decision-maker unreasonably limits the Charter protections in light of the legislative objective of the statutory scheme.

This approach was followed by the Court of Appeal for Ontario in Taylor-Baptiste, and most recently by the Ontario Superior Court in Ontario Nurses Association. There, the court chastised a tribunal for failing to consider Charter values, even when the Tribunal found that the statute at hand was not ambiguous and where the court did not impugn this legal finding

So we have two lines of cases. One line of cases presents the defensible, hornbook law version of the hierarchy of laws, under which laws apply to all—including administrative decision-makers. The other line of cases permits decision-makers to use Charter values before determining whether the statute is ambiguous using the ordinary tools of interpretation, potentially changing what the legislature meant to say on an ordinary meaning of the text in service to some abstract consistency with a Charter “value.”

The distinction between administrative law discretion and statutory interpretation is really just two different points on a continuum. In the context of administrative law, saying that there is “discretion” and that the statute is “ambiguous” are slightly different ways of getting at the same concept. That concept is the idea that the statute cabins the interpretive movements of the administrator. Sometimes statutes will be written in ambiguous or broad terms, permitting discretion. There, Charter values should be fair game. But otherwise, if there is any law to apply at all, Charter values have no role to play.

It should therefore be obvious that this second line of cases is grossly—and dangerously—mistaken. These cases permit Charter values to enter the fray where the statute is not ambiguous (ie) at the first-order interpretive question stage of the analysis. The basic problem can be divided into two categories: (1) the effect of an administrative decision invoking Charter values on the hierarchy of laws and (2) the pernicious consequences of permitting decision-makers to use Charter values in the context of statutory interpretation.

Consider the first problem. The hierarchy of laws might be regarded as a quaint subtlety in today’s world of law, but it remains the bedrock to the Rule of Law. The idea is simple: absent constitutional objection, legislation binds (for a discussion of the continued relevance of this simple maxim, see Justice Stratas’ opinion in Hillier). A statute that is clear creates no discretion; upon first impression, an administrator interpreting a statute must simply apply the statute after determining its meaning using all the permissible tools of textual interpretation. This is because the legislature is the authoritative writer of laws, and those operating under the statutes the legislature promulgates must apply those statutes.

When there is ambiguity, discretion enters the fray. This is because the legislature has delegated to the decision-maker but has not said with specificity what law the decision-maker must apply. Such a finding of ambiguity should only happen after a consideration of all the normal tools of interpretation. At that point, BellExpressVu is a logical way to view the problem: decision-makers and courts can take account of Charter values, so that statutes in ambiguity are interpreted in pari materia with the Charter. This itself is an important canon of interpretation. Laws should be interpreted as a consistent whole, especially where the legislature has not specified what law to apply.

How would this work in the context of a concrete case? In Singh, for example, the problem was whether there was discretion for the Refugee Appeal Division (RAD) in interpreting whether to admit new evidence under s.110(4) of the Immigration and Refugee Protection Act. Section 110(4) contains explicit conditions for the admissibility of evidence. But an intervener made the argument that “the values protected by s.7 of the Charter must enter the interpretation and application of s.110(4) of the IRPA and even lead to the admissibility of new evidence that does not meet the explicit requirements of this provision” (see para 58). The Court rejected this argument because “an administrative decision-maker’s obligation to enforce Charter values arises only if it is exercising statutory discretion” (Doré, at para 55; Singh, at para 62). Since s.110(4) was not written in an “ambiguous manner,” Charter values could not enter the fray. And this is because of the hierarchy of laws: “[i]t is up to Parliament to amend legislation that has been declared unconstitutional so as to ensure compliance with the fundamental law of the land” (Singh, at para 62).

Doré itself involved a much more discretion-laden case, where the question was whether a lawyer’s conduct violated the sparse terms of a rule of professional conduct which simply required lawyers to act with “objectivity, moderation, and dignity.” Here, there is some ambiguity. This is not a statutory recipe, as s.110(4) is. Rather, it permits some discretion in the administrative decision-maker to decide whether particular conduct violates the rule. As such, Doré is a case where there arguably is ambiguity, in contrast to Singh. That said, were I on the Supreme Court, I would have ultimately held that the statutory text could be interpreted in absence of Charter values.

Other cases will be closer to the line. But what should not be permitted is the use of Charter values in absence of ambiguity, like in the Ontario Nurses Association case. By forcing this sort of analysis, courts enable decision-makers to change the clear meaning of statutes in order to accord with abstract Charter values, even when those values are not clear and the legislation was not written in this manner. The answer in such a case is for someone to raise a direct constitutional challenge to the legislation, either before the decision-maker or before a court. Otherwise, administrative decision-makers have no power to rewrite statutes to conform with Charter values—not necessarily coextensive with the Charter’s text—because to do so permits the decision-maker to co-opt the legislative role.

This leads into the second problem. The use of Charter values in statutory interpretation could lead to mass unpredictability in the application of law. First, this is because Charter values remain undefined. No one can tell whether a Charter value is co-extensive with the text of the Charter or not. No one can tell if there are Charter values that exist in addition to Charter rights. No one can tell the level of abstraction at which Charter values must be stated. While I have previously noted that Charter values are simply being deployed as if they were co-extensive with existing Charter rights, this need not be the case, given the ambiguity in how the Supreme Court has defined Charter values.

And this is the problem. Charter values are potentially so abstract that they provide a wishing-well of material for inexpert administrative decision-makers to mould clear statutory text in favour of their preferred policy outcomes. This is positively dangerous, and the mere possibility of it should be avoided by courts. What’s more, the invocation of Charter values in this way could lead to different findings of “inconsistency” with Charter values across the mass of administrative decision-makers, raising the prospect of palm-tree justice. In other words, it might simply depend on the decision-maker you draw as to whether a statute will be interpreted in accordance with “Charter values”; what such an interpretation would mean for your case; and what “value” would even be invoked in the first place.

Much of constitutional interpretation should exist to prevent such outcomes. Doctrinal rules should be developed to limit the discretion of judges and decision-makers to depart from the hierarchy of laws; or at the very least, rules should mandate that reasoned explanations be given for such departures. This is even more true in the context of the administrative state, where the mass of decision-makers exercising authority is so divergent that it is difficult to control as a matter of law. But the Charter values framework consists of no rules to control these decision-makers. It is simply unprincipled balancing under the guise of law. It is the realm of philosophers rather than lawyers and courts.

Devaluing Section 33

What happens to “Charter values” when a statute invokes the “notwithstanding clause”―and what this might mean for Québec’s Bill 21

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.