Courts can't save us from the notwithstanding clause; politics can

The Canadian Civil Liberties Association has issued a release sounding its alarm about the recent spike in provincial uses of the Charter’s notwithstanding clause (section 33), many if not most of which are egregious attacks on minority rights, shielding legislation from judicial review or used in knee-jerk reaction to lower court decisions finding a law unconstitutional.

The CCLA is right to be concerned. The norms around the use of the notwithstanding clause have eroded considerably in recent years. Governments are not bothering to justify these decisions by relying on principled discussion, or to balance reasonable disagreements about competing rights, or even to argue courts have made errors in their interpretation of the constitution. In some cases there is barely any legislative debate as bills employing the clause are rushed through. In many cases governments are simply using s.33 to assert policy objectives that viciously assault basic Charter rights, including religious freedom or minority language rights (as in the case of Quebec’s Bill 21 and Bill 96) or the right to strike (as in a recent case in Ontario).

The notwithstanding clause is a valid constitutional instrument, with clearly-expressed limitations (it can only be used in relation to certain sections of the Charter, and expires after 5 years, though it can be indefinitely renewed). It was included in the Charter as the result of a political compromise, but it was also justified on a principled basis of preserving a degree of parliamentary sovereignty and in recognition that courts don’t always ‘get it right’. Despite pushback on this understanding of its origins, it is undeniably the case that given the challenges of reaching the 1982 constitutional agreement, the Charter of Rights might not exist if not for the notwithstanding clause.

None of this is to say that we shouldn’t judge individual uses of the notwithstanding clause on basic normative or rights grounds. Cases where governments might employ the clause in the course of making principled arguments about how courts may have misapplied the Charter’s reasonable limits test, or where competing rights were validly at stake, are different from cases where the government is willfully stomping on minority rights to push through a crude policy objective.

In short, we can and should be critical of many recent uses of the notwithstanding clause.

In this vein, the CCLA is probably right to critique ‘pre-emptive’ uses of the clause. Governments should be expected to pass constitutionally valid legislation, and to defend it before the courts, before recourse to an extreme legislative power like s. 33. Pre-emptive use of the clause does little but protect the government from the negative publicity of a critical judicial decision about the constitutionality of its legislation.

But the CCLA goes much further, arguing that courts could nonetheless strike down laws to protect rights on the basis that “the notwithstanding clause cannot be used to take away core rights which existed long before the Charter, and which are central to Canada’s constitutional structure. Among these core rights are the right to life and security of the person, the right to free expression, and the right to freedom of religion.”

Although the CCLA is correct that Canadians enjoyed many of these rights prior to the Charter, it is emphatically wrong to suggest that the courts can act against legislation that may limit them, at least in a way that is equivalent to enforcing the express provisions of the Charter.

Prior to the Charter, the only context in which courts could invalidate legislation was on division of powers grounds. Indeed, on occasion, the courts were able to protect rights by finding that a government was acting outside of its jurisdiction. On other occasions, the courts might find that actions by the executive exceeded its legislative authority. In the context of some of these cases, some judges argued that the constitution included ‘implied rights’, like a right to political expression, a theory which never gained the support of a majority of the Supreme Court.

The primary reason rights could only be judicially protected in these indirect ways was the principle of parliamentary sovereignty, something that the notwithstanding clause specifically protects. So while courts could creatively interpret the division of powers or specific statutes in the name of protecting rights under the common law, they have never been free to invalidate legislation that clearly and explicitly limits rights so long as it falls under the jurisdiction of the enacting legislature.

In making an argument about ‘Canada’s constitutional structure’, the CCLA is arguing that courts should ignore this key component of the constitutional structure, not to mention the specific structure of the notwithstanding clause itself. It is an argument that would, in effect, invite the courts to amend the constitution.

This doesn’t mean that all legal challenges against legislation invoking s. 33 should fail. Sometimes laws violate rights not subject to s.33. In the context of Bill 21, I have recently published a piece explaining why the Court needs to recognize that s. 33 cannot be used to violate the sexual/gender equality.

But in general, efforts to have the courts invent new limits on the notwithstanding clause or to somehow invalidate legislation despite the clear effects of s. 33 should be seen as arguments in favour of dramatic and radical judicial overreach.

The improper uses of the notwithstanding clause need to be fought in the political arena. Governments need to be punished electorally for violating rights. I recognize in some cases this political battle will be extremely tough, especially when the rights of unpopular minorities are at stake. But if our political culture is so eroded that we can’t muster that battle, then we are too far gone for creative judicial reasoning to save us anyway.