Defending Charter rights against the notwithstanding clause

Politics is all about making choices, sorting the good options from the bad. Sometimes the options are all bad to one degree or another — which seems to be the plight facing the federal government as it contemplates provinces’ recent use of the notwithstanding clause.

Once regarded as a constitutional taboo object, section 33 of the Charter of Rights and Freedoms seemed (until recently) to be turning into a handy gadget for premiers in a hurry. The clause has been used, or brandished, many times in the past four years — three times in Ontario (two attempts were withdrawn) and on several occasions in Quebec.

The most recent attempt to deploy the notwithstanding clause ended in humiliation for Ontario Premier Doug Ford when his government promised to scrap legislation imposing a contract on 55,000 education workers and barring them from striking. With public opinion loudly rejecting Ford’s attempt to use section 33 to impose a labour contract — and with the threat of a wider strike looming — the premier was forced to climb down.

When the Charter was introduced, conventional wisdom held that the clause would be used rarely, if at all, because the political consequences of suspending human rights would keep governments in line. Which is more or less what just happened in Ontario.

Ford’s flip won’t be enough on its own to restore the political taboo on section 33, however. The clause was meant to preserve parliamentary sovereignty from activist courts. But Ontario’s legislation and recent laws introduced by the government of Quebec Premier François Legault — notably Bill 21, which bars public sector workers in positions of authority from wearing religious symbols on the job — invoked the clause pre-emptively, before any court was given a chance to rule on the laws’ constitutionality. And Legault, of course, has shown no signs of backing down.

“It’s why pre-emptive use of the notwithstanding clause is so odious,” said Kerri Froc, associate professor of law at UNB.

“The clause is part of the Charter, so using it after a court decision where the legislature has a different interpretation of rights respects the Charter. Using it pre-emptively, on the other hand, amounts to saying, ‘The hell with the Charter.’”

Now the federal government is under heavy pressure to do something about provinces’ pre-emptive use of the notwithstanding clause. The most radical ‘something’ suggested to date — disallowance — is widely regarded by the experts as a dead letter.

“Disallowance is a bit of a loser,” said Froc. Last used in 1943, disallowance is the federal power to kill a provincial law. It’s not entirely defunct in theory (it was mentioned in a Supreme Court decision as recently as 1993), but it was partly intended to support the federal government’s duty to protect minorities — a function since assumed by the Charter.

“Using it now would lead to a constitutional crisis, assuming disallowance wasn’t found to have fallen into desuetude,” said Froc. “So, yeah, not a great option. That’s without considering the political consequences of using it on an Ontario law without having used it on Bill 21.”

Addressing one constitutional crisis by creating another seems like a bad idea. The second option — a Supreme Court reference — is far less risky, although it also has its detractors.

The problem with the jurisprudence on section 33, said University of Ottawa professor of law Adam Dodek, is that it “basically imposed no limits on the use of the notwithstanding clause at all.”

Through a reference, he said, the federal government could ask the Supreme Court to define the limits of section 33, particularly regarding pre-emptive use.

“It’s a risky approach — the federal government could lose,” he said. “[But] right now, nothing that premiers Ford and Legault have done falls out of the bounds of the [jurisprudence].”

Cheryl Milne, director of the Asper Centre for Constitutional Rights at the University of Toronto, said the most prudent course for the federal government would be to wait for appeals of Bill 21 to make their way to the Supreme Court.

“What a reference misses is the actual details of the case, the facts,” said Milne. “An appeal, I think, will be before the Supreme Court in a year and a half, two years, which is how long it would take to get a reference before the court anyway. So we might as well wait.”

Patricia Hughes, former dean of law at the University of Calgary and founding executive director of the Law Commission of Ontario, said the Supreme Court might be reluctant to weigh in with a reference. “They’ve taken a very hands-off approach to this to date,” she said.

“A Supreme Court reference is an opinion, nothing more. The only enforcement it offers is moral enforcement. In what way is that different from a political judgment? What would happen after a reference would depend on the degree to which the province wants to be held to that moral standard.”

Supreme Court reference decisions tend to be treated as “binding decisions,” said Dodek. But what would happen if a province — confident that it had public opinion on its side — chose to defy a reference? Wouldn’t that also trigger a constitutional crisis?

“And anything the SCC said about pre-emptive use of the notwithstanding clause in Ontario would apply as well to its use in Quebec,” said Hughes. “Is the federal government willing to bring Quebec into this fight?”

Which brings up a good point. The Charter is law, but the way governments approach it is political. The government of Prime Minister Justin Trudeau went out of its way to attack Premier Ford’s use of the notwithstanding clause, but its comments on Premier Legault’s use of the clause have been far more muted.

“These bills are pretty popular in Quebec,” said Guillaume Rousseau, who is acting for an intervener in the Bill 21 appeal. “And Mr. Trudeau has a lot of support in common with the CAQ (Premier Legault’s party).

“I know it seems odd, but a lot of people in Quebec who vote Liberal federally also support Mr. Legault. Perhaps the overlap between the federal Liberals and the Ontario Progressive Conservatives is not that great.”

Before the Ford government offered to withdraw its back-to-work legislation, a third option was available to the federal government, said Froc: a division of powers argument.

Ontario’s bill threatened to impose massive penalties on striking education employees — up to $4,000 per employee and $500,000 for the union per day. Those fines were heavy enough for the federal government to argue that Ontario was stepping into criminal law territory.

“The 1993 Morgentaler decision found that the size and severity of the penalties in provincial legislation can decide in part whether it strays into criminal law,” said Froc. “In law, social approbation is supposed to feed into criminal deterrence, and one of the tools we use to effect that is very large, serious penalties.

“It’s worth remembering that labour law in this country was tied up with criminal law before the Charter because it was about property and public order. I think it’s a tenable argument.”

And it is tenable, said Hughes — but it wouldn’t prevent an end-run by a provincial government.

“There are already some very high administrative penalties in provincial law in Ontario,” she said. “And what would stop the government from reintroducing the bill with lower penalties? It wouldn’t really engage with the substance of the problem.”