Concern for the future of the Charter

Alarmed by the increasing use of the notwithstanding clause by provincial governments and threats to do so by a potential future federal government, the Canadian Civil Liberties Association is sounding the alarm.

The group has launched the Save Our Charter campaign to build public and political engagement as part of an effort to put more guardrails around the use of Section 33 of the Charter of Rights and Freedoms.

“For 40 years, almost every province refrained from using the Charter override,” says Anaïs Bussière McNicholl, director of the fundamental freedoms program at the CCLA.

“Alarmingly, this is no longer the case.”

 In recent years, some provincial governments have used or attempted to use the Charter override to prevent education workers from striking, to ban provincial government employees from wearing religious symbols, to prevent non-French speakers from receiving public services in other languages, to prevent trans youth from using their chosen names and pronouns in schools, and to limit organizations from sharing their political views a year ahead of an election.

“This trend might very well be just the beginning.”

At the federal level, Bussière McNicholl notes that opposition leader Pierre Poilievre has hinted that he would use the clause to override rights protecting a person’s liberty until they’ve had their day in court. He’s also suggested he’d use it to circumvent Section 12 protections against cruel and unusual punishment.

In Ontario, Premier Doug Ford has said he’s prepared to invoke Section 33 to allow municipalities to clear out homeless encampments. Next door, Premier François Legault may also use it to ban prayer in public places and oblige Quebec-trained doctors to stay in the province for a certain period.

“This needs to stop,” Bussière McNicholl says.

“If governments can use the Charter override without consequence, they won’t hesitate to do so time and time again. If our rights and freedoms can so easily be overridden, our Charter is in danger. This should concern everyone.”

The CCLA is calling on Parliament and provincial legislatures to legislate and limit the use of the notwithstanding clause within specific parameters. Those should include a prohibition against pre-emptive use of the clause and a supermajority requirement to invoke it within the legislature seeking to use it. Further, the courts should still have the explicit duty to review the use of the clause, and where that purpose is incompatible with the constitutional structure, they should be explicitly allowed to strike it down.

The Canadian Bar Association has proposed its own guidelines, which include a prohibition against pre-emptive use. However, the CBA also wants to include requirements for meaningful and transparent public consultation before the clause can be invoked, as well as a two-thirds majority vote in the legislature or Parliament.

Emmett Macfarlane, a political science professor at the University of Waterloo, says the CCLA has a valid concern with the norm-violating uses of the notwithstanding clause. He sees the proposal to prohibit pre-emptive use as unobjectionable.

“The problem with a pre-emptive use is that rather than merely asserting the position of the legislation, you’re trying to prevent the courts from even having a say or registering a judicial finding that the legislation is constitutionally problematic,” he says.

“I’d agree that governments, as a rule, should not be bringing it forward in a pre-emptive action.”

University of New Brunswick constitutional law professor Kerri Froc says this is a good idea to a point, but there will be times when the results of a court challenge will be obvious.

“I don’t think that anyone is going to say that Bill 21 stood a hope of being constitutional in spite of the protestations to that effect by the Quebec government,” Froc says.

“There is a body of thought that says that even if the notwithstanding clause is ultimately used, the court decision can be instructive.”

She adds that this may overestimate the courts' influence over the public’s perspective, but it would remain a best practice.

On the other hand, Maxime St-Hilaire, a constitutional law professor at the University of Sherbrooke, says there are valid reasons for using the notwithstanding clause preemptively.

“I think it’s a very bad practice for the rule of law for legislatures to reply to judicial decisions,” he says.

“In the long run, that would undermine the courts’ authority in society.”

St-Hilaire says that legislators having to disavow judicial decisions puts judges in a tricky position. Section 33 was a device put in place to allow politicians to withdraw some questions from judicial debate.

“It makes more sense to use it pre-emptively because it’s more transparent. There is also a debate over whether courts have a monopoly on the interpretation of rights,” he says, adding that there are concerns that we could be headed to a “juristocracy.”

St-Hilaire says that no constitutional convention around the use of Section 33 has emerged post-Charter about its use in an emergency. That practice suggests it has become a political tool, particularly by provincial governments.

But he says it’s understandable how legislators might be tempted to use it to put case law related to specific provisions on hold, at least for five years.

“There’s a lot of dogmaticism in the CCLA’s position.”

While the Charter itself has made the decision to invoke Section 33 a political one, St-Hilaire says there is a need for clarity on the legal conditions around when it can be used and its political legitimacy.

As for requiring a supermajority, Macfarlane is unclear whether the CCLA is suggesting this requirement be a legal rule or a preference as a political matter to ensure that they have broad, multi-partisan support.

“If they mean it as a legal rule, you get into a rather complicated debate around the validity in matter-and-form requirements in legislation,” he says.

“It’s not entirely clear whether we want to start bringing (those) requirements for anything in our system, let alone the notwithstanding clause.”

Macfarlane adds that as a political rule, it’s normatively desirable that the use of the clause has super-majoritarian or multi-partisan support. Still, he would hesitate to try to make it a legal requirement.

Froc says there have been instances, in provincial legislatures in particular, where the government has held a majority of seats, which would meet the supermajority requirement.

“The main check on this is the public, and if they think that this is an inappropriate use of the notwithstanding clause, they will vote them out in the next election, or at least undercut the support the bill has,” Froc says.

“Focusing on educating the public and having some procedural requirements aimed at public consultation is better than focusing on what votes a government has in the legislature.”

Macfarlane questions the CCLA’s suggestion that courts can still find laws invalid despite the notwithstanding clause.

“Nothing in our constitution endows courts with that authority,” he says.

“The CCLA is suggesting something here that seems like it would result in fairly severe judicial overreach. Or it would lead to specific enforcement of the notwithstanding clause that would be contrary to the clause itself.”

St-Hilaire says it would be “terrible” if courts allow themselves to give their opinion on the relationship between Charter rights that have been validly derogated from specific legislative provisions.

“People would have even more legitimacy in criticizing the rule of judges,” he says.

“It’s a trap for our judicial system. In the long run, it would put into question the courts’ authority. We should respect the clear text of what was decided in 1982, and if we’re not happy with that, the solution is to amend the Constitution.”