Last week, the English Montreal School Board [EMSB] announced that it is refusing to to implement Bill 21, introduced by the Quebec government. The law would ban workers in the public sphere in positions of authority from wearing “religious symbols” while at work. The government, apparently cognizant of the challenges this could raise under the Canadian Charter of Rights and Freedoms, signalled its intention to invoke the notwithstanding clause to immunize its law from constitutional scrutiny by the judiciary.
In pre-emptively declining to implement the law, the EMSB invoked constitutional objections under the Charter against the ban:
Vice-Chair Joe Ortona, who drafted the resolution, said that the EMSB believes this proposed legislation would be contrary to paragraph 2 (a) of the Canadian Charter of Rights and Freedoms which guarantees everyone’s right to freedom of conscience and freedom of religion and contrary to paragraph 2 (b) of the Canadian Charter of Rights and Freedoms which guarantees everyone’s right to freedom thought, belief, opinion and expression.
Furthermore Mr. Ortona said that the EMSB believes this proposed legislation would be contrary to subsection 15 (1) of the Canadian Charter of Rights and Freedoms which guarantees that everyone is equal before and under the law and guarantees the right to equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on religion and contrary to section 3 of the Charter of Human Rights and Freedoms which guarantees freedom of conscience, freedom of religion, freedom of opinion, and freedom of expression.
Quite aside from the merits of the issue, there is a legitimate question of administrative law, here: can an administrative agency like a school board, empowered by statute, simply decline to enforce a law that it believes is unconstitutional? More specifically, can the agency decline to enforce the law if the law invokes the notwithstanding clause? Whatever the answer is, should agencies be able to come to their own determinations of constitutional law?
The place to start is probably the Martin and Conway line of cases. The core issues in those cases were the conditions under which an administrative agency can choose not to apply statutory provisions in its enabling statute that it considers to be unconstitutional—and if so, whether there is a power to issue personal remedies under the Charter. So these cases go, if an agency has the express or implied power to decide questions of law under the challenged provision (see Martin, at para 37), then it presumptively has the power to determine questions of constitutional law. The implied inquiry looks to a number of considerations (see Martin at para 41):
Relevant factors will include the statutory mandate of the tribunal in issue and whether deciding questions of law is necessary to fulfilling this mandate effectively; the interaction of the tribunal in question with other elements of the administrative system; whether the tribunal is adjudicative in nature; and practical considerations, including the tribunal’s capacity to consider questions of law. Practical considerations, however, cannot override a clear implication from the statute itself, particularly when depriving the tribunal of the power to decide questions of law would impair its capacity to fulfill its intended mandate. As is the case for explicit jurisdiction, if the tribunal is found to have implied jurisdiction to decide questions of law arising under a legislative provision, this power will be presumed to include jurisdiction to determine the constitutional validity of that provision.
The presumption can be rebutted by the party seeking to dislodge the Charter jurisdictional presumption, by pointing to an express or implied withdrawal of authority to decide constitutional questions: the concern is discerning whether there is an intention to “exclude the Charter, or more broadly, a category of questions of law encompassing the Charter, from the scope of the questions of law to be addressed by the tribunal (Martin, at para 42).
So the question at the outset for the EMSB is whether it has been conferred the ability to decide questions of law, either explicitly or impliedly. The enabling statute for the EMSB is the Education Act. Under s.111 of that statute, the province of Quebec is divided into “two groups of territories,” with one group constituting English school boards, like the EMSB. The EMSB, under the statute, is “a legal person established in the public interest” (s.113). There is at least some reason (even if weak) to believe under the Education Act the EMSB has the power to decide questions of law, but only a limited one pertaining to its particular mission under the Education Act. For example, under the statute, the EMSB has the power to “ensure that the basic school regulation established by the Government is implemented” (s.222) and can exempt students from that basic regulation “[f]or humanitarian reasons or to avoid serious harm to a student” (s.222). Assume for now that these rather vague and limited provisions confer a general power to decide questions of law: that general power, interpreted in light of the text, context, and purpose of the Education Act as it relates to school boards, would probably only relate to the organization of quality educational services (s.207.1), although one could argue that the same concern could apply to the context of Bill 21.
Even if this could be seen as an implicit signal of constitutional jurisdiction under the Education Act, it is a bit orthogonal to the core interpretive question. Martin, the key case on point, says that the real question is whether the EMSB has power to decide questions of law under the challenged provision in its enabling statute (see paras 27-28, 35). But here, there is not only no challenged provision yet, but it is not the EMSB’s enabling statute. This presents two further problems: can agencies issue prophylactic constitutional rulings? And even if they can, can they do so by choosing not to apply a statute that is not their enabling statute?
It would seem odd, in light of the Supreme Court’s cases, to suggest that an administrative agency can prophylactically choose not to apply a law that otherwise applies to it. Administrative agencies are creatures of statute, and so are subject to the statutory conditions that the legislature imposes on them. Under Bill 21, the terms of the statute clearly apply to school boards (see Schedule I, (7)). Short of some dispute arising within the confines of the statutory regime created by the Education Act, there does not seem warrant for the EMSB to go out on a limb and refuse to apply a statute that has yet to have created any particular problems within its statutory jurisdiction. This seems to be what Abella J suggested in Conway, where she concluded that tribunals could “have the authority to resolve constitutional questions that are linked to matters properly before them” (Conway, at para 78).
More important than this issue, though, is the idea that the EMSB can choose not to apply a statute that is not its enabling statute. The main Supreme Court cases dealing with this issue, even the ones that predate Martin, involve the enabling statute of the decision-maker under consideration (Conway, at para 49: “These cases dealt with whether administrative tribunals could decide the constitutionality of the provisions of their own statutory schemes.” Consider the cases on this point: in Cuddy Chicks, the issue was whether the Ontario Labour Relations Board could determine the constitutionality of a provision in the Labour Relations Act. In Martin, the question was whether the Nova Scotia Workers’ Compensation Appeals Tribunal could decide a s.15 Charter claim under the Workers’ Compensation Act and associated regulations. All of these cases involved claims tied to the regime under which the decision-maker was established, with cases “properly before them.” And this makes sense: it would be odd for Parliament to delegate power to an administrative agency, confined by a statutory scheme, to pass on the constitutionality of other statutory provisions that may only tangentially be related to the part of the Education Act (for example) that the EMSB must apply.
Even if none of this were true, the notwithstanding clause effectively limits any independent choice an agency could have about the constitutionality of the statute under which it is invoked. For one, even if one could impute an intention to the legislature that presumptively allows the EMSB to make constitutional determinations, the notwithstanding clause is a good reason to say that the legislature has rebutted that presumption with respect to the particular category of question at issue here: this is the upshot of Martin and Conway. More fundamentally, a use of the notwithstanding clause cannot be legally questioned by any actor in the system, including the judiciary. The EMSB cannot legally second-guess the choice of the provincial government (its master) to insulate legislation from constitutional scrutiny. The invocation of the notwithstanding clause flows down the entire machinery of the state, and whether we like it or not, its use is legally justifiable by the fiat of the legislature.
To my mind, the use of the notwithstanding clause also renders null any arguments that one could make that the EMSB is justified in its prophylactic ruling because of an abstract notion of “Charter values.” Despite the fact that the spectre of Charter values is increasingly being called into question, and the precedential force of cases like Trinity Western should be questioned because of the lack of reasoning on the point (see, embarrassingly for the TWU majority, para 59), the notwithstanding clause is a legislative command that compels executive actors to ignore the Charter when implementing the law in question. There would be no point in invoking the notwithstanding clause if administrative actors could choose to “independently” opine on the constitutionality of laws in the face of it. The lightning rod for a consideration of Charter values is discretion, and the notwithstanding clause neutralizes any discretion at all on the constitutional question.
To my mind, there is little warrant for the EMSB to prophylactically say it will not enforce Bill 21, given its limited statutory domain and the use of the notwithstanding clause. And this is likely how it should be. It is one thing for an administrative agency, when implementing a statute in the context of a concrete dispute, to have to pass on the constitutionality of a statutory provision—in its own statute—in order to resolve the dispute. In that case, there are at least colourable reasons why the agency should have the power to do this: if one believes in the idea that agencies have expertise on matters arising within the confines of their statute, one could say that they could also have expertise on Charter matters arising in relation to that same statute. One could also say that the legislature delegated to the agency the power to make Charter determinations, even through the imperfect proxy of a general power to decide questions of law. These same justifications lose their force when considering statutory provisions outside the enabling statute. While Bill 21 certainly does affect the realm of the EMSB, the EMSB is not conferred a general power to make constitutional determinations arising under other statutes.