notwithstanding clause – Double Aspect

Not as Advertised

Legislative debates leading to Saskatchewan’s use of the notwithstanding clause show little interest in constitutional rights

There are two main views out there about what section 33 of the Canadian Charter of Rights and Freedoms, a.k.a. the notwithstanding clause, does, descriptively speaking. One is that it is a means by which legislatures can free themselves from constitutional constraint to effectuate their own policy preferences. The other is that, far from being an escape hatch from the constitution, section 33 allows legislatures to give effect to their own considered views of what the constitution requires. The majority in the recent decision in Toronto (City) v Ontario (Attorney General), 2021 SCC 34 (on which I commented here) recently endorsed the latter view, as defended by Dwight Newman. (An early version of Professor Newman’s chapter making this case is available on SSRN.)

The defenders of this view, including Professor Newman, hold up Saskatchewan’s use of its section 33 powers a few years ago as exemplary in this regard. Geoffrey Sigalet and Ben Woodfinden have written that it was “[p]erhaps the best illustration” of what they had in mind. The Saskatchewan legislature enacted the School Choice Protection Act, 2018 in response to the Court of Queen’s Bench decision in Good Spirit School Division No. 204 v Christ the Teacher Roman Catholic Separate School Division No. 212, 2017 SKQB 109, which declared unconstitutional the funding of Catholic schools for educating non-Catholic students but not of other religious or secular private schools. (I wrote about that decision here. It was later reversed on appeal in Saskatchewan v Good Spirit School Division No. 204, 2020 SKCA 34. ) The Court of Queen’s Bench found that preferential funding of Catholic schools infringed the principle of state neutrality and thus both the freedom of religion and equality rights protected respectively by sections 2(a) and 15(1) of the Charter.

As part of a broader research project looking at whether legislatures do indeed put forward their own interpretations of the constitution when they invoke section 33 of the Charter, I have read the debates about Bill 89, which became the School Choice Protection Act, in the Saskatchewan legislature. In light of the importance that this particular law has assumed in the notwithstanding clause discussion, I thought it would be worthwhile to share my account of these debates, followed by some comments, without waiting complete the entire project (which I am due to present at the Legacies of Patriation Conference this coming April).

Bill 89 was introduced in the Legislative Assembly on November 8, 2017—almost seven months after Good Spirit was decided. A week later, the then-Minister of Education launched the second reading debate with a speech that occupies all of six paragraphs in the Hansard transcript. The Minister acknowledged that the Bill was “in response to the Court of Queen’s Bench … decision” and referred to the Court’s finding that the state’s duty of religious neutrality, and hence the Charter’s religious liberty and equality provisions had been infringed. (2927) However, the Minister asserted that the province’s “funding model … does not discriminate based on religious affiliation”. (2927) The Minister did not explain why she disagreed with the court; nor did she make any other argument about freedom of religion or equality, beyond this one sentence.

Rather, she insisted that “[h]aving to wait for a decision on the appeal could leave parents and students with a great deal of uncertainty about the future, not knowing if they would continue to be funded to attend a separate school”. (2928) As a result, said the Minister, “[i]t is important to invoke the notwithstanding clause now in order to provide certainty to parents and to students so that they can be assured that they will continue to be funded to attend their school without having to wait for the outcome of an appeal”. (2928) This would be the entirety of the contribution the government side of the Assembly would make to the second reading debate.

That debate went on until May 2018, albeit at a desultory pace (on the last day, one of the opposition members complained that “[w]e haven’t seen this bill up too often on the order paper this session and there are a lot of outstanding questions here that do remain outstanding.” (4222)) A number of opposition members spoke, most of them acknowledging the potential for disruption if the Good Spirit judgment were allowed to enter into force. For one, indeed, “there’s no question that, unchallenged, that [sic] this ruling would make fundamental changes to education and classrooms, not only in Saskatchewan but the entire country”. (3173) They also repeatedly endorsed resort to section 33 in some cases, at least as a last resort, one invoking Alan Blakeney in doing so. (3259-60)

However, opposition members argued the government should not have relied on its section 33 powers before the appeals were exhausted. In the words of the member who spoke immediately after the minister, “[w]hile the appeal is being considered, there is no legitimate need to jump to the notwithstanding clause”. (2928) Another darkly warned of “the unintended consequences of using the notwithstanding clause at this point”, which “could be huge”. (3119) However, the member did not specify what these huge unintended consequences might be. Beyond voicing these concerns with process and timing, the opposition members did not add to the Assembly’s collective consideration of the Charter, despite occasional calls on “every member of this House to look through this court decision, to read through the findings”. (3173) Instead, they took advantage of the “debate” to voice recriminations about the government’s funding and management of Saskatchewan’s schools—an issue that is not obviously germane to the constitutional issues Bill 89 raised.

The second reading debate was concluded on May 7, 2018, and the bill was committed to the Standing Committee on Human Services. The committee met on May 23, for an hour and a half. Much of this time was taken up by exchanges between the (new) Minister of Education, assisted by a Ministry of Justice lawyer, and a single member from the opposition. It is worth noting that the Committee Chair warned the members that the Minister may have felt constrained by the ongoing appeals process, although it is not obvious in what respects, if at all, the Minister was really prevented from making his views clear, or for that matter why he should have felt so constrained.

The Minister reiterated his predecessor’s argument that Bill 89 was a response to the Good Spirit decision and that “[i]nvoking the notwithstanding clause ensures that the government can continue to fund school divisions based on the status quo funding model, which … does not distinguish based on religious affiliation”. (733) This would “ensure that parents continue to have a choice as to where they wanted to send their children, … [if] non-Catholic parents wanted to continue to send their children to Catholic schools and have government funding for those children attending those schools” (734)―something he would later describe as “protecting the rights of non-Catholic parents”. (737) The Minister further asserted that “in terms of using it to protect the rights of individuals … it’s a fair use of the [notwithstanding] clause. But from that perspective, I think that any time that you’re using that particular clause, I think you want to be very cautious and very careful about that.” (737) In response to an opposition member’s question, he also noted that, except with respect to the funding of non-Catholic students at Catholic schools, the existing constraints on discrimination in school admissions would not be affected by Bill 89. (740) The Minister pointed to the uncertainty with which the parents were faced, a concern the opposition member shared, and claimed that this concern could not have been addressed in any other way. (738) Yet he later admitted that “whether there are other tools that can be implemented” or what they might be was something he was “not prepared to talk about”, “because [he] ha[d]n’t given a whole bunch of thought to them”. (742) It would, rather, be “for the parties to start giving some fairly serious thought to what this all looks like at the end of the day”. (742) There was no debate on the single amendment approved by the select committee and no Third Reading debate either. Bill 89 received Royal Assent on May 30, 2018.

To be blunt, if this is supposed to be a good advertisement for legislative engagement with the constitution, the product is not an impressive one. A key proponent of section 33, Peter Lougheed, who was Alberta’s Premier at the time of Patriation, would later argue that, in deciding to invoke the notwithstanding clause “a legislature should consider the importance of the right involved, the objective of the stricken legislation, the availability of other, less intrusive, means of reaching the same policy objective, and a host of other issues”. (16) Professor Newman has similarly lofty expectations. But there is precious little of this in evidence in the Bill 89 debates.

The importance of the right involved? No one, neither the Ministers nor opposition members, engage with freedom of religion, equality, and the state’s duty of neutrality at all, unless we want to count the Ministers’ bald assertions that the funding system the court has declared to be discriminatory does not discriminate. It is fair to say that politicians should not be held to the same standards of reasoning as judges, but surely we’d expect to see something, anything, by of an explanation. Nor does any of the speakers question why the funding model was set up the way it was, with a privilege for Catholic schools that was denied to others. Nor, evidently ― and despite the Minister’s initial, quickly self-contradicted, assertion to the contrary ―, has anyone given serious thought to alternatives to this scheme and to using the notwithstanding clause to keep it in existence, although ― as I wrote here shortly after the decision was rendered, an obvious alternative does exist: the legislature could fund non-Catholic minority schools on equal terms with the Catholic ones.

The only relevant concern that was voiced during these proceedings was that with ensuring stability for non-Catholic students in Catholic schools and their parents. This is, obviously an issue that deserved a lot of attention. Yet paradoxically ― and, certainly by the time of the committee discussion, everyone was aware of this! ― invoking section 33 was only a short-term fix, not a permanent solution to this difficulty. Yet no thought was given either to a system of equal funding for all schools, which would have solved the constitutional problem, or to a system of gradual transition out of the arrangement the Court of Queen’s Bench had found to be unconstitutional, at least for those children who were only starting their schooling.

One final thing to note is that, quite apart from the quality of the legislature’s consideration of the issues, the quantity is rather lacking. In particular, I find the lack of participation by the government side of the legislature remarkable, and not in a good way. The only remotely serious discussion ― and even this is a generous assessment ― of the rights issues happened in committee, where the Minister was present in his executive capacity, not as a legislator. The government had a strong majority in the legislature ― but it was largely a silent one. In a very real way, the legislature did not offer any views at all on Bill 89.

In short, the Saskatchewan legislature did not put forward any alternative interpretation of the Charter rights involved ― it paid no mind to them at all. Its consideration of justified limitations on these rights was limited. The solution it adopted was not a permanent one. In my respectful view, those who hold up this episode as a proof of concept for the claim that legislatures can use section 33 to give effect not to brute majoritarian preferences but to constitutional judgments are wrong to do so. Perhaps, as I consider other recent episodes where section 33 was used or where its use was serious contemplated, I will find better support for their theory. But this ain’t it.

The UK Way

What a recent decision of the UK Supreme Court can teach us about courts, legislatures, and rights

A recent decision of the UK Supreme Court, R (SC) v Secretary of State for Work and Pensions, [2021] UKSC 26, might be of interest for Canadian readers. Lord Reed’s judgment for the Court addresses issues that are relevant to current Canadian debates about the relationship between courts, legislatures, and rights, equality rights in particular. To be sure, the UK context is not the same as Canada’s. Still there are lessons to be learned there.

In a nutshell, at issue in SC was a statutory rule providing that one particular tax credit available to low-income families would only be payable in respect of a first and second child, but not for any subsequent children in a family. (Other benefits remained unaffected.) This was alleged to constitute discrimination, on a number of different grounds, in the protection of a right to family life, which is guaranteed by the European Convention on Human Rights, and thus by the Human Rights Act 1998. The Supreme Court found that there was indeed prima facie discrimination against women (who were more likely to be caring for multiple children) and children living in families with three or more children, as opposed to those living in smaller ones. But the rule was still justified as a reasonable means of ensuring the fiscal sustainability of the credit programme.

One could make many interesting observations about this. Canadian readers might want to consider the different approach to equality rights under the Convention and under s 15 of the Canadian Charter of Rights and Freedoms ―no abstruse inquiries into human dignity, histories of stereotyping, and so on, and a ready recognition of what we’d term “analogous grounds”, but also a greater willingness to defer to Parliamentary judgment, except where some particularly invidious forms of discrimination are concerned. But in this post I focus on a different issue: namely, Lord Reed’s comments on the nature and scope of Parliament’s engagement with rights, and the courts’ consideration of this engagement in assessing the compatibility of resulting legislation with the Convention.

These comments are part of Lord Reed’s discussion of “the use which can be made of Parliamentary debates and other Parliamentary material when considering whether … legislation is compatible with Convention rights”. [163] This was necessary because the parties argued about whether or not Parliament gave sufficient consideration to “matters which were argued to be relevant to the proportionality of the legislation, such as its impact upon the interests of the children affected”. [163] Lord Reed, however, cautions about this kind of argument, both out of respect for Parliament’s privileges and, no less importantly, in light of Parliament’s distinct constitutional role.

Parliamentary privilege, as part of the separation of powers, means relevantly “that it is no part of the function of the courts … to exercise a supervisory jurisdiction over the internal procedures of Parliament”. [165] In particular, courts should not expect and must not demand “transparent and rational
analysis” of rights claims by Parliament, because this “would be liable to make the process of resolving political differences through negotiation, compromise and the exercise of democratic power more difficult and less likely to succeed”. [171] The quality of the reasons given by individual Members of Parliament, or even by Ministers, is not what is at issue when courts assess the effect of statutory provisions on rights or their justification and proportionality in a democratic society.

Another aspect of the separation of powers, Lord Reed points out, is the distinction between Parliament and government. Among other things, this means that “[a]s a matter of daily reality, ministers and party whips
have to negotiate and compromise in order to secure the passage of the legislation which the Government has promoted, often in an amended form.” [166] And it follows from this that “[t]he reasons which the Government gives for promoting legislation cannot therefore be treated as necessarily explaining why Parliament chose to enact it”. [166] Neither the government nor individual members can be taken to be speaking for Parliament. Its “will … finds expression solely in the legislation which it enacts”, [167] and its “intention … or (otherwise put) the object or aim of legislation, is an essentially legal construct, rather than something which can be discovered by an empirical investigation”. [172]

At most, Lord Reed says, courts inquire into “whether matters relevant to compatibility” between an impugned statute and Convention rights “were raised during the legislative process”, while “avoid[ing] assessing the adequacy or cogency of Parliament’s consideration of them”. [182] If they were, then ― regardless of the quality of these debates ― Parliament’s enactment may be entitled to an additional measure of deference. The converse, however, is not true: lack of Parliamentary consideration of the issues does not count against the statute.

Canadian courts need to take heed. The most egregious example of their failure to attend to the principles Lord Reed expounds is surely the one Maxime St-Hilaire and I have written about here: the first instance judgment in the Québec mosque shooter’s case, R c Bissonnette, 2019 QCCS 354 (since reversed in part by the Court of Appeal, and now under appeal at the Supreme Court). There, Professor St-Hilaire and I noted, the judge engaged in

play-by-play commentary on Parliamentary debate, praise for “[o]pposition members [who] did their job”, [1146] denigration of a government member’s answer as being of “dubious intelligibility” [1137] and of the Parliamentary majority as a whole for its “wilful blindness” [1146] in the face of opposition warnings.

Another recent example is provided by Justice Zinn’s comments in Smith v. Canada (Attorney General), 2020 FC 629 to the effect that “[a] statement made by the Prime Minister at the time as to the intent of Parliament and its members ought to be accorded significant weight, if not considered conclusive on the issue of Parliamentary intent”. [85]

But even the Supreme Court has sometimes succumbed to such misguided reasoning, if in less extreme forms. Thus in R v Safarzadeh‑Markhali, 2016 SCC 14, [2016] 1 SCR 180, Chief Justice McLachlin, writing for a unanimous court, picked and chose among various purposes offered by the Minister who had promoted the legislation at issue, declaring one to be the real purpose of the statute and the others “peripheral”. This arguably crosses the line into “impeaching” Parliamentary statements, and certainly wrongly attributes a Minister’s supposed purpose to Parliament, to the detriment of the separation of powers and to the advantage of the executive over the legislature.

That said, two caveats are in oder. First, Lord Reed’s emphasis on the separation of the executive and the legislature may not always be appropriate in the Canadian context, at least outside of minority government situations. When one considers the law-making practices of some governments and legislatures ― notably, ubiquitous abusive omnibus legislation, or laws interfering with constitutional rights passed in a matter of days, it is difficult to maintain that the legislatures involved are anything other than inanimate rubber-stamps, quite devoid of any “will of their own”. More generally, Canadian legislatures lack certain features and institutions that serve to maintain the Westminster Parliament’s partial independence from the executive. But that doesn’t change the principle that courts should not attribute the executive’s purposes to the legislature. Partly, this is to avoid rewarding the executive for overwhelming the legislature; partly because, as Lord Reed says, it is not the courts’ place to assess the quality of legislative deliberation, and that includes the degree of its independence from the executive.

Second, Lord Reed’s discussion of deference ― both the narrow point described above, to the effect that Parliament’s consideration of an issue should reinforce curial deference to its choices, and what he says elsewhere in the judgment ― is also to be treated with the greatest caution in Canada. Lord Reed is judging in a constitutional system where Parliamentary sovereignty rather than constitutional supremacy is the ultimate principle. But, moreover, section 1 of the Canadian Charter requires any limitations on the rights it protects to be “demonstrably justified” (emphasis mine). The wording of the European Convention is a bit different ― it speaks (for example in article 8, which was at issue in SC) of limits “necessary in a democratic society”. Those readers ― and judges ― who, like me, attach importance to the words of constitutional texts may well think that the Charter‘s emphasis on demonstrable justifications calls into question the appropriateness of judicial deference to legislative choices, and especially of deference on no stronger a basis than the fact that the legislature turned its mind to an issue.

But judges are not the only Canadians who should take note of Lord Reed’s explanations. The proponents of the use of the Charter‘s “notwithstanding clause”, which allows legislatures to maintain in operation laws that are contrary to the Charter‘s guarantees, ought also to consider what Lord Reed says about the difference between courts and legislatures. Their argument is premised, in part, on the claim ― often asserted though seldom supported ― that legislatures will serve “as a forum where rights are debated, articulated and enacted” with “the thoughtful participation of the people themselves”, in the words of Joanna Baron and Geoffrey Sigalet in a post over at Policy Options. Lord Reed’s explanations show why this claim is unlikely to be true, or at least nearly as true as its proponents make it out to be.

Lord Reed points out that the way in which Parliament does its business does not require debate and articulation of rights, or any particular degree of thoughtfulness on the part of the people’s representatives, let alone the people themselves. He writes:

First … Parliament does not give reasons for enacting legislation: it simply votes on a motion to approve a proposed legislative text. There is no corporate statement of reasons, and the individual members of Parliament do not give their reasons for voting in a particular way. …

Secondly, the decisions which Parliament takes are not necessarily capable
of being rationalised in any event. In the first place, Parliament does not operate only, or even primarily, as a debating chamber. It is also a forum for gathering evidence, and for extra-cameral discussion, negotiation and compromise. Furthermore, the way in which members of Parliament vote will usually, but by no means always, reflect party policy, and may be influenced by the discipline imposed by the party whips. [167]-[168]

Lord Reed further explains that while the courts’ task is “the production of decisions arrived at by an independent and transparent process of reasoning”, Parliament’s is

the management of political disagreements … so as to arrive, through negotiation and compromise, and the use of the party political power obtained at democratic elections, at decisions whose legitimacy is accepted not because of the quality or transparency of the reasoning involved, but because of the democratic credentials of those by whom the decisions are taken. [169]

In other words, when Parliament makes a decision, including a decision that impacts or even directly concerns the rights of citizens, it need not act on the basis of reasoned deliberation. It is just as likely to be giving effect to the results of horse-trading or to the political tactics of the majority, its ministry, and its whips. Rights, or any other considerations, need not be articulated in any sort of intelligent fashion in this process. To be sure, sometimes they will be ― but this is no more than a happy accident. It cannot be the foundation of a constitutional theory, let alone the basis on which anyone should accept that their rights can be suspended by a political faction that holds them in contempt.

For all that Canadians like to think of themselves as open to learning from the constitutional law of other countries ― and despite some reservations I have on this score! ― I think that we do not do it nearly enough. There is indeed a great deal to learn out there, and not least from the courts that, to some, might seem passé ― those of the United States and the United Kingdom. SC is a good reminder of that.

Common Power Grabs

A defence of Ontario’s use of the notwithstanding clause as “common good constitutionalism” is the same old tripe, under a new sauce

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, [2004] 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.

Just Asking

Should the power over criminal law be transferred to the provinces?

Let me ask you what might be a provocative question: is there a good reason why criminal law and criminal procedure should be a matter of federal jurisdiction in Canada? The initial choice of the Fathers of Confederation to make them matters for Parliament under section 91(27) of the Constitution Act, 1867 was justified and turned out well, I think. But the reasons that were relevant at Confederation, and for a century thereafter, no longer hold true. Should we amend the constitution to make criminal law a provincial power ― and, if so, on what conditions?

I should note that this post is just me thinking on the screen. I do not mean it as a definitive word on anything. I am not an expert on criminal law, and might be missing something important. By all means, tell me if, and why, you think I’m wrong (or more wrong than usual). Still, I thought these questions are worth thinking about.

So far as I can tell ― and I haven’t done any actual research on this, so I may just be spewing out preconceptions and received wisdom here ― criminal law and procedure being a federal power continues the basic divide established as early as the Quebec Act 1774. Private disputes would be “determined agreeably to the said Laws and Customs of Canada“. To preserve the ability of the French Canadian majority in Québec to control (most of) its private law, “property and civil rights” became subject to provincial jurisdiction at Confederation. By contrast, the Quebec Act maintained English criminal law in force:

whereas the Certainty and Lenity of the Criminal Law of England, and the Benefits and Advantages resulting from the Use of it, have been sensibly felt by the Inhabitants, from an Experience of more than nine Years, during which it has been uniformly administered; be it therefore further enacted by the Authority aforesaid, That the same shall continue to be administered, and shall be observed as Law in the Province of Quebec, as well in the Description and Quality of the Offence as in the Method of Prosecution and Trial.

The lenity of the Criminal Law of England was such that dozens if not hundreds of offences could lead to hanging, but that was still better than judicial torture, which had existed under ancien régime French law. Here again, Confederation ensured that the status quo would continue, by putting criminal law within Parliament’s jurisdiction ― in contrast to the situation that prevailed in the United States and that would prevail in Australia.

This was as well. I doubt there was any chance of French criminal law being brought back to Canada in the 19th century ― even maintaining the old civil law proved a frightful challenge, which was one of the reasons for the introduction of the Civil code of Lower Canada (as I explained here). But given the relative moderation of federal politics in comparison with what went on in some of the provinces, notably with the authoritarian regimes of the Social Credit in Alberta and the Union Nationale in Québec, federal control over criminal law has been a blessing. It was the reason, notably, for the invalidation of Québec’s ban on “communistic propaganda” in the notorious “Padlock Act” in Switzman v Elbling, [1957] SCR 285.

But something very important happened since then: the enactment of the Canadian Charter of Rights and Freedoms. Section 2 of the Charter protects Canadians across the country from dictatorial legislation such as the Padlock Act. Sections 7 to 14 of the Charter entrench substantive, formal, and procedural provisions historically associated with the “certainty and lenity of the criminal law of England”. Section 24 of the Charter and section 52(1) of the Constitution Act, 1982 provide remedies against governments and legislatures that disregard these rights. These judicial protections (subject to an obvious caveat, to which I will get shortly) are likely to be more effective than the structural devices employed at Confederation. After all, we know that Parliament keeps enacting, and the courts ― to the chagrin of “tough-on-crime” politicians and even some misguided judges ― keep invalidating absuvie criminal laws. As a result, it’s not obvious to me that the centuries-old reasons for making criminal law a federal matter are still valid.

Meanwhile, there are other considerations, some also longstanding but others less so, that support transferring this power to the provinces. The former category includes the principle of subsidiarity: the idea that power should be decentralized and exercised as closely to the citizen as it can be effectively exercised. It’s not clear to me why the provinces couldn’t competently and effectively legislate over criminal law and criminal procedure. As it is, they already legislate over provincial offences under section 92(15) of the Constitution Act, 1867. Since criminal law reflects moral considerations, it would make sense for Canadian provinces, with differing moral outlooks of their electorates, to be in charge of defining this law for themselves. Other usual benefits of decentralization, such as the possibility of provinces experimenting with different policies, within constitutional constraints, would also apply.

The more novel benefit of transferring the power over criminal law to the provinces would be to nip in the bud the tendency for Parliament to rely on the criminal law power to enact regulatory schemes that invade areas of provincial jurisdiction ― or, rather, since this tendency is already well-developed, to pluck off its increasingly putrid flower. Examples of this tendency, all upheld at least in part, include laws dealing with tobacco advertising, the registration of firearms, assisted human reproduction, and most recently genetic non-discrimination. (Shannon Hale blogged here on her and Dwight Newman’s critique of the Supreme Court’s lax approach to Parliament’s criminal law power in Reference re Genetic Non‑Discrimination Act, 2020 SCC 17.) Denying Parliament the power to make criminal law would not only allow us to reap the benefits of federalism in this area, but also to preserve them in others.

Now, I do think that some safeguards must be in place for this change to the distribution of powers to work well. One is already part of the Canadian constitution’s design. Others will need to be implemented as part of a package of amendments together with the transfer of jurisdiction over criminal law to the provinces.

The (mostly) existing safeguard the appointment of the judges of the superior courts, who preside at the most significant criminal trials, by the federal rather than the provincial governments. This has been an important barrier against the power of populist provincial governments. It will become an even better one if the federal government exercises its appointment power without being distracted by populist tough-on-crime considerations that caused it, for example, to introduce police officers into the selection committees that vet prospective judges. However, for this system to continue to work well, it will need to be coupled with an assurance that at least the more serious criminal cases will continue to come to the superior courts, either for trial or, at least, on appeal. Section 96 of the Constitution Act, 1867 may do this already, but I would prefer an explicit addition to section 11 of the Charter.

The other additional safeguards I would want to see include, first and foremost, the repeal of the Charter‘s “notwithstanding clause“, which allows Parliament and, more to the point, provincial legislatures, to suspend the effective protection of the rights entrenched in sections 2 and 7-15 of the Charter. At a minimum, the protections of the rights of the accused in sections 7-14 should be free from the threat of override; but it is highly desirable that the substantive protections of fundamental freedoms in section 2 should be so too. Section 15 is perhaps less relevant here, but there is no reason to maintain the “notwithstanding clause” for its sake. The reason for contemplating transferring the criminal law power to the provinces, despite the greater risk of populist takeovers, is that the Charter protects against its being abused. This protection must be effective at all times, and not at the provincial legislatures’ sufferance.

Lastly, some additional adjustments to the division of powers scheme will be necessary. For one thing, a federal equivalent of the current section 92(15) will be necessary to replace Parliament’s plenary criminal law power. Just like the provinces now, Parliament should be able to provide for penal enforcement of its legislation. Moreover, some measure of extra-territorial criminal power will need to remain with Parliament as well. There is of course some danger that even this limit grant of power will be abused. This is what has happened in the United States, despite Congress not having any explicit criminal law powers. The crimes created under the power to enacted laws “necessary and proper for carrying into execution” Congress’s other powers have become literally innumerable: when the American government tried to count all of the offences on its books, it failed. (Some are documented by a darkly humorous Twitter account.) However, the Canadian jurisprudence on the division of powers generally, and on ancillary powers in particular, is much more robust than its American counterparts, so one can reasonably hope that this American disaster can be avoided in Canada. For another, while the federal power over penitentiaries in section 91(28) will no longer make much sense, a more limited power to maintain a carceral system for those convicted of the remaining federal offences will be necessary.

Needless to say, there is very little chance of my proposals ― even assuming that they make sense which, to repeat, they may well not ― ever being taken up. Even apart from Canada’s general, and I’m inclined to think generally sound, aversion to constitutional tinkering, I just don’t see Parliament giving up such a high-profile legislative power that has, for politicians, the virtue that its exercise allows for relatively low-cost grandstanding and virtue-signalling. But who knows. And, if nothing else, I think we should from time to time ask ourselves whether the existing division of powers makes sense, if only to remind ourselves of the reasons why we have it and why, on the whole, it is a good and useful thing.

Constructive Shooting

How to evaluate New Brunswick’s use of the Charter’s “notwithstanding clause.”

Mark Mancini and Geoff Sigalet

Yesterday our colleague Leonid Sirota wrote a somewhat scathing review of the New Brunswick government’s recent intention to invoke the notwithstanding clause. The legislation at issue requires students to provide proof of vaccination, with a sole exemption on medical grounds. Leonid ably describes the legislation’s context more in his post, so we need not repeat it here.

The purpose of our post today is to try to clarify the lines of debate raised by New Brunswick’s potential invocation of the notwithstanding clause. The notwithstanding clause can be used pre-emptively, in absence of a court decision, or as a response to a court decision. Our first legal point is that there is nothing objectionable whatsoever about New Brunswick using the notwithstanding clause in the absence of a court decision—so long as the use is prospective, as noted in the seminal Ford case. Our second normative point is that the case against pre-emptive uses of the clause is grounded in a deeper concern about using the clause to override Charter rights, rather than to disagree with courts about how such rights relate to matters of public policy. But pre-emptive uses of the clause could anticipate disagreements with courts about how rights relate to public policy, and critics of the notwithstanding clause are too quick to denigrate the role legislatures have to play in constructing and protecting Charter rights.

Start with the legal point. The Ford decision set out the bases on which the notwithstanding clause could be used, but all of the requirements for its use were based on form only. For example, the use of the clause could be prospective only; retroactive applications are not permitted. There were limitations in the text of s.33 that also bore on the problem; for example, the legal force of the clause would expire after 5 years; and the force of the notwithstanding clause would only apply to Charter rights contained in section 2 or sections 7 to 15 of the Charter. These are the only formal requirements for the use of the notwithstanding clause.

Nowhere in the text or the history, that we can see, is there a legal distinction between uses of the clause that should solely apply to responses to court decisions as opposed to ab initio uses of the clause in absence of a court decision. In fact, the text of the notwithstanding clause could sanctify the use of the notwithstanding clause in both circumstances. Recall that the text says the following:

Section 33.

(1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 (our emphasis).

(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.

(3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.

(4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1).

(5) Subsection (3) applies in respect of a re-enactment made under subsection (4).

This text could mean that laws with notwithstanding provisions override Charter rights themselves, while on the other hand the text could indicate that such laws operate notwithstanding the duties and obligations that courts have attached to particular rights. In either case, a legislature would need no court response to invoke the notwithstanding clause. On either view, laws operate notwithstanding anything courts have said about the obligations and duties related to rights in the past, or anything they might say in the future within the renewable 5 year expirations of section 33 invocations. The identical legal effect of these interpretations suggests that the text of section 33 was designed to maximize legislatures’ ability to anticipate disagreements with courts about how Charter rights relate to public policy matters, and to actively disagree with judicial decisions about Charter rights.

Consider the counterfactual: if the clause was tied to uses responding to particular judicial decisions, then courts could have used this mechanism to restrict the legislature’s ability to anticipate disagreements with courts. Courts could deem uses of the clause insufficiently connected to prior judicial decisions to be invalid, and legislatures’ “dialogue” with courts about rights would likely be even more flat footed and defensive than is currently the case.

In our view, the text is capacious enough to cover both uses of the clause to disagree with courts about the relevance of Charter rights to particular policy matters and about the nature of their relevance. What that means is that there is no principled legal distinction to draw between pre-emptive or reactive uses of the notwithstanding clause. The text simply indicates that a particular law will operate notwithstanding certain provisions of the Charter—the text could accompany a “court-first” understanding of those provisions, or a pre-emptive legislative one.

Whether one such use is better than the other, though, is a matter for political or normative debate. We think that the real debate is not about pre-emptive or reactive uses of the clause, but rather about whether the clause is being used to override or express disagreements about Charter rights. There are normative reasons to be worried about pre-emptive and reactive uses of the notwithstanding clause that simply ride roughshod over the core meaning of Charter rights. Section 33 gives legislatures the broad power over the constitutionality of a particular legislative provision, and it shuts out the judicial resolution of those claims. This is compatible with uses of the clause meant to exclude any reasoned consideration of Charter rights tout court, as was the case with Quebec’s initial use of the section 33 to immunize all of its legislation from judicial review for compliance with the Charter rights to which notwithstanding provisions apply. Such uses do not facilitate the “dialogue” that, some would say, is at the core of Canada’s constitutional arrangements. Also, the pre-emptive use of the notwithstanding clause in this fashion could end up creating a culture of rights degradation, where courts rarely if ever have the final say on rights adjudication. This worry is attenuated to some extent by the expiration of notwithstanding provisions after 5 years, and if one accepts Prof. Webber et al’s argument that the notwithstanding clause does not shut out the possibility of judicial declarations.

These concerns are serious over the long haul, but we see no particular reason to be worried about a single pre-emptive use of the notwithstanding clause. This is because New Brunswick may not invoke the notwithstanding clause to simply run roughshod over rights. Leonid’s case against the clause purports to show that New Brunswick’s use of the clause joins Saskatchewan’s 2018 Bill 89, Quebec’s 2019 Bill 21, and Ontario’s 2018 threatened use of the clause in Bill 31. But it is a mistake to lump these uses of the notwithstanding clause together. Leonid cites his earlier argument that Saskatchewan’s use of section 33 to protect legislation allowing non-Catholics to attend constitutionally protected Catholic schools would inspire governments to use the clause “whenever they think their policy ends justify the means, without paying attention to the rights the constitution is supposed to protect.” But the preamble of Saskatchewan’s Bill 89 itself laid out reasons for protecting public funding for non-Catholic students at Catholic schools that were sensitive to the Charter right to religious freedom. The preamble claims that:

Whereas it is desirable and in the public interest that education funding should not be based on any religious affiliation of parents, guardians or pupils;

Whereas it is desirable and in the public interest that boards of education may, subject to this Act and The Education Act, 1995, determine their own policies respecting admitting pupils, and that education funding to boards of education not be limited due to religious affiliation of parents, guardians or pupils;

The first of these clauses of the preamble demonstrates a concern with the need for religious neutrality in the extension of historically privileged denominational right on equal terms to denominational and non-denominational students alike. This is akin to the reasoning of the U.S. Supreme Court in Zelman v. Simmons-Harris allowing Ohio parents to use state subsidized vouchers to send their children to religious schools, and unlike Canada, the U.S. Constitution features an explicit prohibition on the establishment of religion. The second clause shows a concern with the autonomy of religious institutions that has been echoed by the Canadian Supreme Court’s jurisprudence on religious freedom. Perhaps Leonid disagrees with this assessment of how religious freedom relates to extending denominational school funding neutrally: but Canada is a democracy where elected legislatures ensure that ordinary citizens have some say about these matters. Saskatchewan’s use of the clause provides an exemplar against which to assess New Brunswick’s Bill 11.

But we shouldn’t be too hasty in drawing comparisons and conclusions. The New Brunswick bill has only just been introduced, and as such it remains to be seen whether the government will offer rights-sensitive reasons for using section 33 in the spirit of Saskatchewan’s Bill 89, or else simply emphasize how the majority’s policy goals override Charter rights, as in the case of Quebec’s Bill 21. Clearly, the former case is normatively more desirable than the latter; but it is important to remember that, on either case, the New Brunswick legislature is accountable for its appraisal of the law and its relationship to the Charter rights at play. The expiration of notwithstanding provisions ensures that courts must eventually have a co-ordinate say to ensure the legal longevity of the legislature’s rights construction. Far from creating a one-way “shooting gallery”, the notwithstanding clause is subject to plenty of democratic channels of opposition. A government that treats section 33 like a weapon could find itself in a gunfight with its own constituents. The expiration of the clause subjects its use and renewal to elections, such that the best control on the use of the notwithstanding clause does not lay in a courtroom, but in the minds and hearts of the citizens of Canada. That seems quite justifiable in a free and democratic society.

Shooting Gallery

A proposed invocation of the Charter’s “notwithstanding clause” in New Brunswick is misguided and disturbing

New Brunswick is the fourth province in the last couple of years, after Saskatchewan, Ontario, and Québec, to announce plans for invoking section 33 of the Canadian Charter of Rights and Freedoms, a.k.a. the “notwithstanding clause”, to immunize a bill from scrutiny over possible violations of the Charter. This confirms the trend towards a normalization of the use of the “notwithstanding clause”. Indeed, I think that, if the bill is enacted, it will reinforce this trend considerably, because it is, in substance, a much more serious piece of legislation than the crassly populist, my-way-or-the-highway ukases of Ontario and Québec which, if nothing else, at least continued giving the “notwithstanding clause” a bad name.

Bill 11, just introduced in the provincial legislature, creates a requirement for school pupils to provide proof of vaccination, subject to an exemption on medical grounds alone, and not for conscientious or religious objectors. It is, therefore, a plausible response to the worrying spread of preventable infectious diseases due to the failure of misguided parents to vaccinate their children. As the CBC report on the story notes, “[t]he Public Health Agency of Canada says the risks associated with vaccines are very low”; but anti-vaccination activists still insist that mandatory vaccination amounts to “state and pharma control over Canadian children”, and are gearing up to fight it in the courts.

The CBC quotes New Brunswick’s education minister as claiming that having the mandatory vaccination requirement operate “notwithstanding the provisions of … section 2 and sections 7 to 15 of the Canadian Charter“, as well as, for good measure, the provision of the provincial Human Rights Act that bans discrimination in services, (Bill 11, cl 4) will save “‘expensive court costs’ resulting from … challenges ‘by folks who’ve got nothing but conspiracies and medieval fantasies to base their arguments upon'”. The minister doesn’t say, apparently, whether he thinks such challenges would have any chance of prevailing. Nor does he seem to be advancing any particular view of the relevant rights, or even to have much of a view about which rights are relevant here: why do mandatory vaccinations have to be imposed “notwithstanding”, for example, the right of a party to court proceedings to the assistance of an interpreter (protected by section 14 of the Charter)? I doubt the Minister has a clue. He just wants to preempt litigation challenging his bill.

Once again, this is not a good look for those who defend the “notwithtanding clause” as giving political actors a chance to engage in meaningful debate about the scope of constitutional rights or the justified limits to which they can be subject. As I wrote about the Saskatchewan case, ” real-life governments are largely uninterested in thinking about constitutional rights. If they are allowed to disregard judicial decisions, they will not engage in serious deliberation themselves”. The evidence that has accumulated since then supports this view, not that of, for example, Geoffrey Sigalet and Joanna Baron who celebrated Québec’s invocation of the “notwithstanding clause” as “an opportunity for democratic renewal”. And in the New Brunswick case there isn’t even a (possibly mistaken) judicial decision to disagree with. The minister doesn’t even consider it worthwhile to hear from the courts before imposing his view. This makes sense if, and only if, his view is motivated by considerations of convenience, on which the courts indeed have nothing interesting to say.

As I also wrote after Saskatchewan invoked the “notwithstanding clause”, despite what the fans of the “notwithstanding clause” believe, there can be no

tertium quid, some sort of happy Canadian middle ground between Parliamentary sovereignty and judicial enforcement of constitutional rights. If the norm against using the notwithstanding clause disappears, then it will be used proactively, profusely, and promiscuously. Like the Saskatchewan government now, others will use it whenever they think their policy ends justify the means, without paying attention to the rights the constitution is supposed to protect.

It gives me no pleasure to say this, but: I told you so. And, to repeat what I said at the outset, I worry that the use of the “notwithstanding clause” in the service of what is arguably a worthy cause will only accelerate the decay of what’s left of the norm against it. One could previously hope that, just like the feckless Robert Bourassa’s resort to the “notwithstanding clause” in the face of nationalist backlash against Ford v Quebec (Attorney General), [1988] 2 SCR 712 gave it a bad name, so would reliance on it by the populist, borderline authoritarian governments in Ontario and Québec in the last year. But now, the argument becomes: “the ‘notwithstanding clause’ is not just for populists!” There is a danger, moreover, that people will get the impression that the Charter stands in the way of good and useful public policy. Yet this is, to say the least, far from clear from this case. (Indeed, I think that the New Brunswick government would not have an especially difficult time defending mandatory vaccinations against a Charter challenge. If mandatory pictures on drivers’ licenses are constitutional in the name of public safety, surely vaccinations are too.)

When writing about the Saskatchewan case, I compared the “notwithstanding clause” to a loaded gun that the Charter’s framers left on the Canadian constitutional stage. As Chekhov wrote, a gun is not placed on a theater set by accident: it must go off. I was still hoping, though, that the law is different. I wrote that

constitutional actors are not comedians. Even if they are put in a position where a loaded gun is within their reach, their responsibility is not to fire it, but to keep it safe if they cannot unload it, and to instruct those who follow them to do likewise.

Not the current generation of Canadian politicians though. Too many of them seem to think that elected office is a shooting gallery.

The one ray of hope in all this is that Bill 11 might not yet become law. It will, the CBC reports, be subject to a free vote. Perhaps cooler, or more constitutionally-minded, heads will prevail, and disarm the Minister. If not, the constitutional rights of all of us, and not just anti-vaxxers, risk being among the casualties.

The Rule of Law All the Way Up

Introducing my recently-published chapter on the Rule of Law and Canadian constitutional law

LexisNexis Canada recently published (if I understand correctly, as a standalone book as well as a dedicated issue of the Supreme Court Law Review (2d)) Attacks on the Rule of Law from Within, a collection of essays co-edited by my friends Joanna Baron and Maxime St-Hilaire. The publisher’s blurb gives a concise summary of the project’s background and contents:

This volume is a collection of six papers developed from the Runnymede Society’s 2018 national conference by a community of legal experts in response to Supreme Court of Canada Justice Rosalie Abella’s comment that “the phrase ‘rule of law’ annoys her”.

Grounded on the intuition that the legal profession supports the rule of law, the papers examine the historical perspective on threats to the rule of law, the sufficiency of the current Canadian legal framework to support this ideal and how the principle of stare decisis as observed by the Supreme Court of Canada undermines the spirit of the rule of law. The volume also discusses how the law relating to Aboriginal title and the duty to consult fails to adhere to the Rule of Law standards … to the detriment of indigenous and non-indigenous Canadians alike.

I am honoured to have contributed to this volume, with an essay called “The Rule of Law All the Way Up”, which focuses on what I see as the lack of commitment to the Rule of constitutional Law in by scholars, judges, and politicians. Here is the abstract:

Canadian constitutional law is seldom criticised for its failure to live up to the ideal of the Rule of Law. This article argues that it should be so criticised. A number of widely accepted or uncontroversial Rule of Law requirements―the need for general, stable, and prospective rules, the congruence between the “in the books” and the law “in action, and the availability of impartial, independent courts to adjudicate legal disputes―are compromised by a number of ideas already accepted or increasingly advocated by Canadian lawyers, judges, and officials.

This article describes four of these ideas, to which it refers as “politicization techniques”, because they transform what purports to be “the supreme law of Canada” into a set of malleable political commitments. These are, first, deference to legislatures or the application of a “margin of appreciation” and the “presumption of constitutionality” in constitutional adjudication; second, constitutional “dialogue” in which courts not merely defer, but actively give way to legislative decisions; the substitution of political for legal judgment through the application of the “notwithstanding clause” of the Canadian Charter of Rights and Freedoms; and the rewriting of constitutional law by the courts under the banner of “living tree” constitutional interpretation.

The article concludes with an appeal to those who profess commitment to the Rule of Law in relation to the Constitution not to embrace or endorse the means by which it is subverted.

The entire chapter is available to download on SSRN. It builds on many of the themes developed on my posts here ― the rejection of judicial deference on constitutional issues, whether to legislatures or to the administrative state; the imperative to renounce the use of the Charter‘s “notwithstanding clause”; and the perils of “living constitutionalism”. Some of these, notably the issue of deference to administrative interpretations of constitutional law and constitutional interpretation, I will also be pursuing in future work. (Indeed, the first of these is the subject of the paper I will be presenting at the Journal of Commonwealth Law symposium next month.)

I am very grateful to Ms. Baron and Professor St-Hilaire for having given me the opportunity to present these thoughts, and write them up for publication. I am also grateful to Justice Bradley Miller, of the Court of Appeal for Ontario, who gave me thoughtful comments when I presented my chapter (then still very much in draft form) at the 2018 Runnymede Society conference, as well as to Kerry Sun, who was a very helpful editor. And I am looking forward to reading the other contributions in the volume, once I am done preparing the talks I am about to give in the coming weeks.

Concurring Opinion

Does the Charter’s “notwithstanding clause” exclude judicial review of legislation? Not quite!

Earlier this month, Grégoire Webber, Eric Mendelsohn, and Robert Leckey published an interesting challenge to what they termed “[t]he faulty received wisdom around the notwithstanding clause” over at Policy Options. Professor Webber, Mr. Mendelsohn, and Dean Leckey argue that the invocation of section 33 of the Canadian Charter of Rights and Freedoms, the notorious “notwithstanding clause”, by a legislature that enacts a statute does not fully insulate that statute against judicial review. Only the consequences of such review, not its availability, are affected. A court can still declare a statute protected by the “notwithstanding clause” to be contrary to the Charter ― albeit that the statute will continue to apply. This is an intriguing argument, and I think that it is correct.

Section 33(2) of the Charter provides that “[a]n Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.” Professor Webber, Mr. Mendelsohn, and Dean Leckey point out that “The word ‘override'”, often used to describe section 33, “appears nowhere and there is no mention of ‘judicial review’. Rather, the text of section 33 focuses on shielding a law’s ‘operation’.” It excludes the application section 52(1) of the Constitution Act, 1982, which would normally render a provision or statute inconsistent with the Charter “of not force or effect to the extent of the inconsistency”. But this does not prevent a court from declaring that an inconsistency exists in the first place.

I agree, and would add a further textual point. Section 33(1) authorizes the enactment of legislation that will “operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter”. One provision that is not subject to section 33 is section 24, the Charter‘s internal remedial provision. Pursuant to section 24(1),

[a]nyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

Normally, if one’s rights are infringed by legislation, the “remedy that is appropriate and just in the circumstances” is a declaration of invalidity pursuant to section 52(1). The invocation of section 33 of the Charter changes “the circumstances”, however, so that ― for as long as it applies ― it is no longer constitutionally “appropriate” for a court to issue a remedy that affects the “operation” of the statute protected by the “notwithstanding clause”. But it would be wrong to make the leap from that incontrovertible truth to the much broader ― and textually unsupported ― proposition that no judicial remedy is “appropriate … in the circumstances” that include an operating “notwithstanding clause”. Rather, a court faced with a challenge to a statute protected by the “notwithstanding clause” must still strive to issue a “just” remedy within the constraints of section 33; that is to say, a remedy that addresses the violation of claimant’s rights (if any) without purporting to affect the operation of the statute.

As Professor Webber, Mr. Mendelsohn, and Dean Leckey suggest, a bare declaration of inconsistency, which does not purport to render the inconsistent statute “of no force or effect”, would seem to be a remedy that is (however minimally) just, and constitutionally appropriate in circumstances that include an operating “notwithstanding clause”. As they note, the New Zealand Supreme Court recently came to a similar conclusion in Attorney-General v Taylor, [2018] NZSC 104. In Taylor (about which I wrote here), the majority held that a declaration of inconsistency was an appropriate remedy that can serve to vindicate the rights affirmed by the New Zealand Bill of Rights Act 1990 within the constraints imposed by section 4 of that Act, which prevents the courts from invalidating or refusing to apply inconsistent legislation. Even when no particular consequence flows from the declaration, it is still of value to the claimant, and granting it is in keeping with the courts’ role of saying what the law is.

This point is particularly apposite in the Canadian context, since the Charter ― even when section 33 is invoked ― is part of what section 52 of the Constitution Act, 1982 describes as “the supreme law of Canada”. As Professor Webber, Mr. Mendelsohn, and Dean Leckey point out, the courts have always stressed their responsibility for setting out the meaning of this law (well, always except when they follow Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395). This is so even in cases where, for one reason or another, the courts consider that their remedial powers do not reach as far as their power to articulate the law. Professor Webber, Mr. Mendelsohn, and Dean Leckey mention Canada (Prime Minister) v Khadr, 2010 SCC 3, [2010] 1 SCR 44, which is one such case; Reference re Secession of Quebec, [1998] 2 SCR 217 is another well-known example. The Canadian constitutional framework, even more than the New Zealand’s, is different from the Australian one, where the High Court held, in Momcilovic v The Queen, [2011] HCA 34, that the making of bare declarations of inconsistency was not a judicial function or even incidental to a judicial function, and so not something that the courts could constitutionally be asked to do.

Another point worth taking away from Taylor is that declarations of inconsistency should not be regarded as addressed to the legislature. Rather, they are vehicles by which the courts point out that the legislature has abused its powers, and the courts are prevented to do more about that fact than simply acknowledge it. The courts should not be thinking in terms of a dialogue with the legislature; it doesn’t matter whether the legislature is of a mind to take the courts’ judgment seriously. Professor Webber, Mr. Mendelsohn, and Dean Leckey suggest that ,”[i]nformed by the reasoned, evidence-based judgment of an impartial, independent court, the government might amend its policy or decide to allow section 33’s protection to lapse”. I suspect that this is a too optimistic ― certainly the New Zealand Parliament appears to be in no mind to remedy the inconsistency with the Bill of Rights Act identified in Taylor (which concerned the disenfranchisement of prisoners serving short sentences). But this doesn’t matter. It is the courts’ duty to say what the law ― and a fortiori the supreme law ― is, Parliamentary indifference be damned.

Professor Webber, Mr. Mendelsohn, and Dean Leckey’s argument that the invocation of section 33 of the Charter does not exclude judicial review, but only limits the consequences that can result from such review is novel, but I think that it is correct. They are right that, by its terms and within its constitutional context, “[s]ection 33 secures a law’s operation; it does not open a Charter black hole”. Given the Canadian provinces’ newfound penchant for relying on section 33, which I fear is only the start of a sinister trend, we may well soon find out what the courts will make of their idea.

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.

Nothing to Celebrate

Québec’s irreligious dress code proposal isn’t an opportunity to extol democracy, or to do away with judicial review of legislation

In a recent post at Policy Options, Joanna Baron and Geoffrey Sigalet argue that the invocation of section 33 of the Canadian Charter of Rights and Freedoms, the notorious “notwithstanding clause”, to insulate Bill 21, Québec’s proposed legislation making irreligion the province’s official creed from judicial scrutiny “is an opportunity for democratic renewal” in discussions about matters constitutional. In doing so, they come another step closer to overtly taking a position that has always been implicit in the arguments of many of section 33’s fans: that the enactment of the Charter was a mistake. Indeed, they go further and, intentionally or otherwise, make the same suggestion regarding the courts’ ability to enforce the federal division of powers under the Constitution Act, 1867. It is brave of Ms. Baron and Dr. Sigalet to make this argument with Bill 21 as a hook. Yet courageous though it is, the argument is not compelling.

Ms. Baron and Dr. Sigalet dismiss claims to the effect that, while section 33 prevents the scrutiny of Bill 21 for compliance with the Charter’s guarantees of religious freedom and equality, other constitutional arguments remain available. (I have presented one such argument, building on Maxime St-Hilaire’s work, here.) To them, they are no more than a “legalistic … distraction”. Opponents of Bill 21 should, rather, be “making the democratic case for protecting religious freedom”. Indeed, we should be celebrating “the legislative process … with its tradition of active debate”, which allows Québec to take a “collaborative approach to fleshing out important rights”. We should also be celebrating street protests, open letters, and even threats of disobedience issued by some of the organizations that will be responsible for applying Bill 21 when it becomes law. After all, letting the courts apply the Charter “can wind up overriding rights in ways similar to Bill 21”, while causing “an atrophying of the democratic process as a forum where rights are debated, articulated and enacted”. In short, “rights should not be taken for granted, nor left to judges. They require the thoughtful participation of the people themselves.”

I agree with this last point. Rights are unlikely to enjoy much protection in a political culture in which they are seen as something of concern to the courts alone. In one way or another ― whether through judicial acquiescence or through legislative override ― whatever constitutional protections for rights might exist in such a society will be cast aside. Québec is an excellent example of this. And, for my part, I have made a political, as well as a legal, case against Bill 21 here. The two can, and should, coexist.

And this is where Ms. Baron and Dr. Sigalet go badly wrong. In their headlong rush to praise politics, they denigrate the law. Without seriously addressing their merits, their dismiss plausible (albeit, to be fair, not unassailable) legal arguments as mere legalism. This applies not only to an argument based on the Charter, but also to one based on federalism. Presumably, we should count on the political process to sort out which of two different but equally democratic majorities should have the ability to impose its religious views on Canadians ― or any other issues about which order of government has the ability to legislate with respect to a particular subject. Similarly, Ms. Baron and Dr. Sigalet appear to see no harm in state institutions, such as school boards, threatening to act lawlessly, the Rule of Law be damned.

Ms. Baron and Dr. Sigalet also take a remarkably optimistic view of the political process. They say not a word of the fact that the “active debate” for which the praise Québec’s legislature may well be curtailed by the government. They call for democratic persuasion in the face of a law that is designed to impose few, if any, burdens, at least in the way in which it is likely to be enforced, on Québec’s lapsed-Catholic majority, and great burdens on a few minority groups that have long been subjects of suspicion if not outright vilification. A thoughtful advocate of democratic control over rights issues, Jeremy Waldron, at least worried in his “The Core of the Case against Judicial Review” about the possibility that political majorities will put their interests above the rights of minority groups. “Injustice”, he writes, “is what happens when the rights or interests of the minority are wrongly subordinated to those of the majority”, (1396) and we may legitimately worry about the tyranny of the majority when political majorities dispose of the rights of minority groups without heeding their concerns. Ms. Baron and Dr. Sigalet show no sign of being so worried, or of entertaining the possibility that the Québec society’s commitment to religious liberty is fundamentally deficient.

To be sure, Professor Waldron (rightly) reminds us that minorities “may be wrong about the rights they have; the majority may be right”. (1397) He also insists that, in societies genuinely committed to rights, it will rarely be the case that questions of rights will provoke neat splits between majority and minority groups. Still, we should be mindful of his acknowledgement that it is in cases like Bill 21, where majorities focus on their own preoccupations and are willing to simply impose their views on minorities, that the arguments in favour of judicial enforcement of constitutional rights are at their strongest. There is also a very strong argument ― and a democratic argument, too ― to be made in support of judicial enforcement of the federal division of powers, which serves to preserve the prerogative of democratic majorities to decide, or not to decide, certain issues.

Ms. Baron and Dr. Sigalet do not recognize these arguments, which leads me to the conclusion that they see no room for (strong-form) judicial review of legislation, under any circumstances. I believe that this position, at least so far as the Charter is concerned, is implicit in most if not all of the recent attempts to rehabilitate section 33. If one argues that we should trust legislatures to sometimes come to views about rights that deserve to prevail over those of the courts, indeed perhaps to correct judicial mistakes, then why trust them in some cases only, and not in all? The application of this logic to federalism isn’t as familiar in the Canadian context, but in for a penny, in for a pound, I suppose.

Yet in my view, this is a mistake. As the circumstances surrounding Bill 21 show, politics is often little more than the imposition of the preferences of one group on another by brute force. This is as true in a democracy as it is under any other political regime. Democracy makes it more likely (although it does not guarantee) that the triumphant group will be a majority of the citizenry, which may or may not be a good thing. Democracy means that governmental decrees are, in principle (although not always in practice) reversible, and this is most definitely a good thing, and the reason why democracy is the least bad form of government. But I see no basis for pretending that democratic politics is somehow wise, or that it fosters meaningful debate about rights or other constitutional issues. Yes, there are some examples of that, on which opponents of judicial review of legislation like to seize. But these examples are few and far between and, more importantly, nothing about the nature of democratic politics makes their regular occurrence likely.

And of course it is true that strong-form judicial review of legislation, or judicial enforcement of rights (and of federalism) more broadly, sometimes fails to protect rights as fully as it should. I’m not sure that Dr. Sigalet and Ms. Baron’s chosen example, Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 SCR 567, is especially compelling ― I think the case was wrongly decided, but the majority’s position at least rested on the sort of concern that can in principle justify limitations on rights. The more recent decisions in Law Society of British Columbia v Trinity Western University, 2018 SCC 32, [2018] 2 SCR 293 and the companion Ontario case are much worse in this regard, and provide compelling examples of an abject judicial failure to enforce the rights of a (rightly) maligned minority against an overbearing majority. Judicial review provides only a chance that what the political or administrative process got wrong will be set right, not a guarantee. But there is no compelling reason to think that the (usual) availability of judicial review causes the political debate about rights or other constitutional issues to atrophy. After all, as I have argued here, politicians are just as wont to ignore the constitution when they know or think that their decisions are not judicially reviewable as when they know that they are.

In short, I am all for making the case for rights, and even federalism, outside the courtroom, and in ways that do not only speak to those carrying the privilege, or the burden, of legal training. I am all for making submissions to legislatures to try to prevent them from committing an injustice ― I’ve done it myself. And I’m all for protest, and even for civil disobedience by ordinary citizens when the politicians won’t listen ― though I have serious misgivings about officials declining to follow the law, partly for the reasons co-blogger Mark Mancini outlined here, and partly due to concerns of my own. But if the legally-minded among us should not neglect the political realm, then the politically-inclined should not disparage the law. The would-be prophets of popular sovereignty ought to remember Edward Coke’s words in his report of Prohibitions del Roy :

the law [is] the golden met-wand and measure to try the causes of the subjects; and which protect[s] His Majesty in safety and peace: with which the King was greatly offended, and said, that then he should be under the law, which was treason to affirm, as he said; to which I said, that Bracton saith, quod Rex non debed esse sub homine, sed sub Deo et lege.

This is no less true of today’s democratic sovereign, though it be no less apt to stand on its own dignity as James I.