The Canadian Charter of Rights and Freedoms comes with an escape hatch: under Section 33, elected legislatures can, by a simple majority vote, exempt the laws they pass from the application of some of the Charter’s provisions for a period of up to five years — at which time the exemption is either renewed or it expires. That’s the capsule summary every Political Science 101 student is going to learn in their undergraduate classes in the coming weeks, and the first almost half-century of the Charter era hasn’t given us reason to think it’s much more complicated than that.
Until now. A case before the Supreme Court of Canada has conservative legal observers sweating that the country’s nine highest judges could substantially circumscribe the ability of legislatures to draw on section 33’s powers, aided and abetted by the hated-by-them Liberal government of Mark Carney.
The case centers on Quebec’s Bill 21, an Act respecting the laicity of the State, and its use of the notwithstanding clause. This is a case where the law almost certainly couldn’t exist without Section 33. Bill 21 prohibits some public sector employees from wearing religious symbols at work; that is, the whole purpose of the law is to infringe on religious rights otherwise guaranteed by the Charter. Because it’s a Supreme Court case that will create binding precedent for courts across the country, multiple provinces (including Ontario) have weighed in with their opinions.
So too has the Attorney General of Canada, whose factum is what set the nation’s conservatives into a tizzy earlier this month. The feds are taking the opportunity of the Bill 21 case to raise questions about what limits, if any, the constitution imposes on Section 33. They’re worth taking seriously.
“[As] s. 33 of the Canadian Charter of Rights and Freedoms is invoked with increasing frequency, it is important to consider whether there are constitutional limits on the use of this provision,” the factum reads. Among the questions the feds pose to the court: where do we draw the line between the explicitly temporary effects of invoking the notwithstanding clause, and the possibly permanent consequences?
“[A] statute that invokes s. 33 to allow arbitrary executions or slavery would violate a constitutional limit, since such a statute would not be temporarily limited to maintaining the effect of the statute inconsistent with Charter rights or freedoms, but would immediately abolish the very conditions of a free and democratic society,” the feds argue.
Hyperbolic, sure, but the point Ottawa is making is that both the clear text and the form of the notwithstanding clause — not to mention the broader constitutional structure — create a power to only temporarily avoid Charter scrutiny, not a way for governments to cause permanent harms that can’t be repaired.
The British Columbia Civil Liberties Association further argues that even if Section 33 requires that an otherwise unconstitutional law be allowed to operate, that citizens could still potentially sue for damages or other remedies that are allowed in the normal course of judicial decisions.
Several provinces, including Ontario, have instead urged the court to make the broadest possible declaration on the power of Section 33 — Ontario argues that the Charter doesn’t impose any limits on its use outside of its own text, and that once invoked the courts shouldn’t even opine on whether the impugned law even breaches a Charter right in the first place.
(This latter demand may end up being unworkable in practice, and Ontario’s experience suggests why. The notwithstanding clause doesn’t apply to all parts of the Charter, and when the Ford government invoked it to pass campaign finance legislation it was challenged under both sections two and three of the Charter; the courts were necessarily put in the position of having to declare which Charter right was infringed as consequence of having to determine whether the notwithstanding clause’s use was valid — with the Supreme Court of Canada eventually deciding it was not.)
Constitutional interpretation isn’t easy or obvious, and the lawyers for the federal government and the BCCLA raise genuinely interesting arguments about how the notwithstanding clause fits with the rest of Canada’s constitutional structure. Which is a totally different matter from how I think the Supreme Court of Canada should actually rule on the question of Bill 21’s validity, which necessarily needs to include questions about the possible political ramifications both in this province and nationally. If pressed, I’d expect the Supreme Court to uphold the current precedents that place few limits on the notwithstanding clause’s use.
But if the notwithstanding clause exists, and particularly if provincial governments are going to make more and more frequent use of it, all of us as citizens could benefit from thinking harder about how and when we want it to be used in our names.
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