An obvious - but ignored - limit on the notwithstanding clause

People need to listen to legal scholar Kerri Froc

With the recent invocation of the notwithstanding clause by Doug Ford in his fight with CUPE education workers and the egregious uses by Quebec in its racist anti-minority religious dress law (Bill 21) and its language law (Bill 96), a lot has been written recently about whether there should be new rules limiting the use of section 33.

Particularly concerning for some commentators is that governments are routinely employing the notwithstanding clause pre-emptively to avoid a negative court ruling altogether, something they argue was never the intention behind the clause. Others would like to see section 33 removed from the Charter altogether.

Of course, realistically, any new limitations on the use of section 33, or its removal, would require formal amendment of the Constitution. A plain reading of the text places few procedural limitations on legislatures’ use of the clause, and calls for the judiciary to effectively create them are effectively calls for judicial amendment of the Constitution.

The substantive limitations on section 33 are also explicit in the text: the clause must be renewed every five years to remain operative, and it can only be applied to sections 2 and 7 though 15 of the Charter. As a result, attempts by legislatures to employ the clause to pre-empt judicial review entirely will fail if the law at issue infringes other Charter rights, like voting rights (section 3) or language rights (section 16 through 23).

Yet the text of the Charter is also clear about another thing: section 28 reads “Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.” Notably, section 33 does not apply to section 28. Indeed, as Kerri Froc painstakingly details in her doctoral dissertation on the topic (pdf), an initial version of section 33 applied to section 28 and women’s rights advocates fought to have it removed.

What should this mean in practice? As Froc has written repeatedly, laws that disproportionately impact women, like Bill 21, cannot be protected by the notwithstanding clause. And as an alert Twitter user pointed out to me, given that CUPE education workers are disproportionately women, the same would undoubtedly apply to the Ford government’s attack on the right to strike.

So why hasn’t section 28 been relied on to invalidate these laws or prevent the use of section 33?

One big problem is that the courts have hardly paid any attention to section 28. When sex/gender equality cases arise, the logical starting point has been section 15’s broader protection of “equality rights” and the unending challenges the courts, particularly the Supreme Court, have had in developing a coherent approach to identifying discrimination. Section 28 has effectively collected dust, and the passage of time has likely made it more difficult for litigants to get courts to rely on it as a substantive provision of the Charter.

Another problem is that because section 28 is listed under the “General” section of the Charter, some legal scholars argue it is nothing more than an “interpretative provision.” By this they seem to mean that not only is section 28 not its own unique right to equality between the sexes that can or should be applied like the other rights in the Charter, but that it can’t place substantive conditions on those other provisions by virtue of its location along other “interpretative provisions.”

I have never found this logic convincing. For one thing, some of the other provisions of the Charter do carry significance for the interpretation of other provisions. At least one Supreme Court justice, in R v. Kapp, has recognized that section 25 - concerning Aboriginal rights - is “not a mere canon of interpretation” but could be applied to protect the rights of Indigenous peoples where the application of the Charter might threaten them. This necessarily follows from both its text and purpose.

Section 28 is no less clear. But what may be the stumbling block for certain lawyers and justices is that much of Froc’s work on section 28 is originalist in methodology, an approach that in Canadian circles contravenes established dogma of “living tree” constitutionalism (though it should be noted, while originalism is often associated with conservative ideology, Froc is a rare progressive originalist). By relying quite heavily on the legislative history and debates over section 28 - and subsequently its relationship with section 33 - Froc’s argument might hit a wall with some scholars who find such an approach inappropriate (although her dissertation goes into deep detail on why the courts’ current brand of purposivism is ultimately deficient).

But by dismissing section 28 as a mere “interpretative” provision, certain commentators ask us to ignore not only the reason the provision was included in the Charter in the first place but also a plain reading of the text! One does not need to rely on a narrow “framer’s intent” logic (and to be clear, that’s not what Froc does) to justify what a straightforward reading of the text so obviously requires.

To some extent, the failure of courts to acknowledge section 28 arguments is judicial amendment of the Constitution in a different form: they haven’t “created new rules” out of thin air but they have effectively ignored and cast into irrelevancy a meaningful provision of the Charter. Section 28 was not included in the Charter as a symbolic head nod merely reminding us that “hey, sexual/gender equality is important!” - it quite literally privileges sex/gender equality, and at the very least prevents the application of the notwithstanding clause to laws that discriminate on the basis of sex/gender. (Froc goes much further, arguing section 28’s wording also means that section 1 and its reasonable limits clause do not apply to cases of sex or gender discrimination - it would take far too long to go into it but I’m not yet convinced on that point).

It may be the case that ongoing litigation of Bill 21 will finally give section 28 its rightful recognition. If not, it will be a considerable failure of constitutional interpretation, and of an important element of the many political goals and compromises of the Constitution Act, 1982. Observers - and especially courts - need to stop ignoring it.