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.