People gather outside the Supreme Court as it hears appeals on Quebec’s secularism law, also known as Bill 21, on Monday.Sean Kilpatrick/The Canadian Press
The Supreme Court spent most of this week hearing oral arguments in what is widely known as the Bill 21 case, after the infamous Quebec law banning the wearing of religious symbols in much of the public sector – effectively a hiring bar on observant members of certain religious minorities.
Only it isn’t really Bill 21 that is at issue. Though a Quebec court found that it was contrary to the Charter of Rights, it was nevertheless prevented from striking it down by virtue of a section of the law declaring that it applied notwithstanding the Charter, as it is permitted to do by the Charter’s Section 33, also known as the notwithstanding clause.
So the issue in the case has become whether the province used the notwithstanding clause correctly. Only it’s not really about that, either. To ask the Supreme Court to rule on the correct use of the notwithstanding clause implies that the Court has jurisdiction to do so.
Many people deny that it has – to submit a clause exempting legislation from judicial review to judicial review, they argue, is a contradiction in terms – and indeed the Court’s own ruling in a 1988 case known as Ford v. Quebec suggests it believes it has very limited latitude: it can inquire into the “manner and form” in which the clause was invoked, but nothing more substantive than that.
Some intervenors in the case are asking it to revisit that – to consider, for example, whether a government can invoke the clause pre-emptively, that is to preserve a law from Charter scrutiny in advance of any adverse court ruling, or if so whether a court may nevertheless declare that the law would have been in violation of the Charter, had the clause not been invoked.
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The federal government, for its part, is asking the Court to rule whether there should be a limit on how many times a government may reinvoke the clause (as it is constitutionally required to do every five years). Past a certain point, it argues, a temporary suspension of civil liberties – the kind the clause’s framers had in mind – becomes permanent.
So the case is about whether and on what grounds the Court can limit government’s use of the constitutional override? Not really, no. To suggest, even to hypothesize, that the Court might impose any limit of any kind, no matter how mild, elicits such hysterical, over-the-top reactions from the clause’s most fervent advocates, whether from the government of Quebec or from conservatives in other provinces, that it is clear what is really at issue here is the notwithstanding clause itself.
Which is to say, not the notwithstanding clause, but the Charter. It might be about the notwithstanding clause, as it was originally envisaged: as a temporary, emergency stopgap, to be used only in the most dire and unusual cases, and in the absence of any less drastic remedy – where the Court had ruled in such a disastrous way, on such a vital piece of legislation, and with so little opportunity for the government to redraft the law to take account of its objections, that there was no alternative.
But these are vanishingly rare, and in any case that is not how governments, particularly conservative governments, have lately taken to using it. Not only has it been invoked pre-emptively, rather than retrospectively, but with such accelerating frequency and in matters of such infinitesimal urgency that it is easy to see what they are up to.
Their aim is not to exempt this or that legislation from the Charter, but to eviscerate it altogether – to make the use of the notwithstanding clause so routine, so normal, that the Charter becomes entirely optional: no longer a guarantee of the rights contained therein but a suggestion. If this continues – if there are no limits imposed on the provinces’ use of notwithstanding – the Charter will effectively become a dead letter. That’s what this is really about.
So let’s talk about the Charter a little, shall we? The Charter’s enemies – and they are no longer shy about advertising themselves as such – tend to present it as something vaguely peculiar, an American or possibly French invention grafted uncertainly onto our ancient tradition of parliamentary supremacy.
In fact, as I have argued before, we have no tradition of parliamentary supremacy in this country. The British, from which we have inherited so much, do, but from the start it was convention, later encoded in legislation, that bills passed by the colonial legislatures could not override imperial law. Neither, after Confederation, could the federal or provincial governments intrude upon the jurisdiction assigned to each by the British North America Act. Who enforced these boundaries? The courts, of course. So the Charter was nothing new in this regard.
Neither is it remotely unusual. The constitutions of virtually every OECD country contain something similar: a list of rights on which governments are forbidden to trespass. It isn’t only the United States or France. Germany has the Basic Law. Italy has its “Rights and Duties of Citizens,” Japan the “Rights and Duties of the People.” And so on, all across democratic Europe and South America. The exceptions are Britain, Australia and New Zealand.
People congregate outside the Supreme Court.Sean Kilpatrick/The Canadian Press
The vast majority of states with constitutionally protected rights, what is more, empower the courts to act as their guarantors, reviewing the laws for their compatibility with the constitution and striking them down where they conflict. The only clear exception here is the Netherlands, though judicial review is constrained to some degree in Norway, Finland and Switzerland.
Even the exceptions are not absolute. Britain’s Human Rights Act may be non-justiciable, but courts can still issue non-binding declarations of incompatibility. Likewise for New Zealand’s Bill of Rights Act. Australia has no general bill of rights, but does constitutionally protect some, backed by judicial review. The Netherlands, though its laws are off-limits to its own courts, remains a party to the European Convention on Human Rights, whose provisions are enforced by the European Court of Human Rights at Strasbourg.
But here’s what is unusual: the notwithstanding clause. No other country has anything like it. Its advocates like to present it as natural and normal, the sort of pragmatic compromise without which the Charter would impose intolerable limits on democratic governments. Only the notwithstanding clause, they thunder, stands between us and judicial dictatorship. But nobody else with a charter sees it that way. When the Netanyahu government proposed a version of the notwithstanding clause in Israel, the country rose in revolt.
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And here’s another thing that will shock you: it turns out countries with robust systems of judicial review have a better record, on the whole, when it comes to protection of rights. Whether you look at Freedom House’s annual Freedom in the World report, or the V-Dem Institute’s Liberal Democracy Index, or the World Justice Project’s Rule of Law Index, whether you’re measuring legal equality, minority rights, civil liberties, or due process, the same countries appear near the top of every list: Sweden, Norway, Finland, Denmark, Switzerland, and Germany.
Yes, the Netherlands is also there, as is New Zealand – countries with relatively weak rights enforcement but relatively strong rights cultures. And yes, the United States shows up well down the list, illustrating the opposite phenomenon: a country with strong rights enforcement but a weak rights culture. But it’s surely notable that Canada, with its justiciable charter, performs markedly better on this score than Britain and Australia, which have none. At least, it has done until lately.
The dogma that governments must have absolute and unfettered discretion to use the notwithstanding clause as they see fit, as often as they like and for any reason they like, is of relatively recent vintage even in Canada. It was nowhere part of the discussions during patriation: all of the participants were at pains to emphasize how rarely it would be used, and in what extreme circumstances.
Defenders of the notwithstanding clause call it part of the constitutional bargain, without which some premiers would never have agreed to it, but those on the other side of the bargain would never have accepted it had they known how it would come to be used. For that matter, even one of its leading contemporary advocates, former Alberta premier Peter Lougheed, soon had second thoughts. In a 1991 speech, he called for a ban on its blanket or pre-emptive use – and that the support of a supermajority (60 per cent) of the legislature be required to trigger it!
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And yet here we are, with critics hyperventilating that should the Supreme Court so much as touch a hair on its head it will tip the country into, you guessed it, a “constitutional crisis.” Frankly, I think they needn’t worry. The Court is always exquisitely sensitive to the needs and desires of the provinces, and never more so than with respect to Quebec. The most I can imagine them doing is allowing for some sort of non-binding “declaratory relief,” à la Britain. The public would then at least know what rights they had just lost.
There’s room for doubt there would be quite the seismic reaction predicted even if the Court did show some backbone. The secession reference was widely predicted to set off a constitutional crisis, even secession. It didn’t happen. But suppose there were: suppose this modest attempt to put some boundaries around the notwithstanding clause really did annoy the provinces, which is what those fretting about a “constitutional crisis” really mean. In for a penny, in for a pound I say. Rather than leave the job to the Supreme Court, why not do as I have long suggested – and as I see the Liberal Party is set to discuss at their convention this spring – and dust off the federal disallowance power?
It may have escaped some people’s notice, but we are already in a constitutional crisis. Not only in Quebec but across the country, the rights of vulnerable minorities are under sustained attack. The Charter of Rights, the most important statement of who we are and what we stand for as a nation, is being torn to shreds. The notion that the federal government should simply stand by and do nothing in the face of this, for fear of upsetting one or other of the premiers, is simply unacceptable. Doing nothing, it will be recalled, is what got us into this mess.