Sask. government antics give cause for a Clause pause

Human Rights Report | Gregory Beatty

The blow-up over the Saskatchewan Party government’s rush to pass Bill 137. which radically revised school policies around student privacy in personal matters and parental rights, raises some complicated constitutional questions (CCQ) about human rights and democracy — and government use of the Notwithstanding clause to shield controversial legislation from judicial scrutiny.

To get some answers to these CCQ, we reached out by e-mail to Richard Mailey, Director of University of Alberta’s Centre for Constitutional Studies.

With democracy there’s this notion of majority rule. How do human rights, especially for vulnerable minorities, fit in with that?

For some people, the link between “majority rule” and democracy is very tight, almost to the point of being synonymous. Most of the time, the majority does get to represent the people. But this representation loses legitimacy when the majority wants to do something that harms the basic interests of a group outside the majority. That’s where courts are sometimes helpful. Yes, they’re unelected and unaccountable, but it’s precisely because of their insulation from the cut and thrust of electoral politics that they can represent interests that aren’t protected by majoritarian processes.

What was the original intent of the Notwithstanding clause in s. 33 of the Charter of Rights and Freedoms?

I don’t think there is an “original intent”, at least in any legal sense. The Charter was a product of many minds, and it strikes me as unfair to privilege the views of the clause’s proponents — premiers like Allan Blakeney or Peter Lougheed — over those who accepted it reluctantly to get the Constitution patriated.

One helpful piece of context for Blakeney was him looking at the U.S. Supreme Court as a negative precedent. The U.S. Court has sometimes been a vehicle for social progress (most famously during the civil rights era in the 1950s and 60s). But for Blakeney, the most influential period was the “Lochner” era from 1897–1937 when the court struck down almost anything that was out of sync with free–market ideology — maximum working time laws, minimum wage laws, etc.

As an NDP premier, Blakeney was understandably concerned that the same thing could happen in Canada — where the courts would enforce constitutional rights in a socially regressive and harmful way. This is where s. 33 enters the picture as a safety valve, to ensure legislatures could effectively overrule the courts if they were ever faced with a Canadian Lochner era.

There are no hard and fast rules around invoking s.33. Generally, I think, it’s been regarded as a constitutional hammer that’s not to be used lightly, and preferably after the matter has passed through the courts. Do you think governments are starting to view the clause differently?

On one hand, pre-emptive and frequent use is nothing new, although this has mainly been Quebec, which has used it countless times — often with little fanfare or media attention.

But I do wonder if something a bit different is going on now, and whether it’s linked to the global rise of populism. Populism turns on the idea that a particular party or leader is uniquely positioned to authentically represent the people, so institutional checks on power are to be viewed with suspicion or rejected altogether. Pre-emptive use of s.33 reflects this populist attitude because it flatly rejects the institutional check of judicial review on certain Charter grounds.

That’s very different from when a government uses the clause in response to a judicial decision, which seems more indicative of disagreement with the balance struck by the court.

Several times in recent years, conservative governments in Saskatchewan, Ontario and Alberta have either threatened to invoke, or actually invoked s.33. People are raising alarm bells, saying Charter rights are being eroded. Do you think the clause could realistically be amended in today’s political climate?

There are many pieces that would need to fall into place. Constitutionally, it requires the consent of the House of Commons, Senate, and seven provinces that represent 50 per cent of the population. That level of alignment is unlikely, and there are a number of provincial governments that would be in no rush to abolish or curb their own s.33 powers.

There is also the Charlottetown Accord to consider. It was a sweeping constitutional package that federal, provincial, territorial and Indigenous leaders agreed to in 1992. It arguably produced additional unwritten rules — the inclusion of Indigenous organizations in the negotiations, for example, set an important precedent which federal and provincial leaders ought to respect.

If it was possible to amend s. 33, what might be a reasonable step?

There are plenty of sensible reforms that could be made. Peter Lougheed suggested years down the line that the clause should be amended to require a super-majority in the legislature to be invoked.

My own interest — which I’m exploring with my colleague Ian Peach at McGill University — is how we can redeem the promise of the sunset provision in s. 33. It requires that the clause be re-invoked every five years, which guarantees an election between an invocation and the renewal. In theory, that allows the electorate to pass judgment on the government.

The problem with this is that we, as voters, have many priorities, and our political memories are often short. Will we think about a Notwithstanding invocation in a provincial election four years later? Will it be as much of a priority as healthcare, or the cost of living? And even if it is a priority, will we reflect on it with sufficient sensitivity to the constitutional status of Charter rights?

The idea that the electorate is an emergency brake is a nice one, but work could be done to give the public a more direct role in evaluating s.33 invocations. The suggestion Ian and I are floating is that ordinary laws could be passed requiring governments to convene a citizen’s jury to hear evidence from experts and those affected by a proposed invocation, then send a recommendation to the government. This would be a weak legal constraint, but the point is more symbolic — to emphasize the role democratic scrutiny ought to play when s.33 is being considered.

What about judicial guidance on when and how s.33 could be used. Is that possible if governments are seen as abusing the clause?

Another great question! There are lots of options here, but I’ll limit myself to three.

First, it’s been suggested that a plain reading of the Notwithstanding clause makes clear that it’s only about taking certain remedies off the table, not preventing judicial review of actions that allegedly clash with Charter rights. The remedy that is off the table is invalidation: the courts can’t strike down a law if s.33 is in play.

What courts could do, though, is declare that a law is incompatible with the Charter. This would leave the law in force, but would heap extra pressure on the government to reverse course, and send a signal to voters that their government is on the wrong side of the law, at least in the court’s mind.

Declaratory relief could also be provided by a reference case — perhaps initiated by the federal government. If the feds were concerned about a s.33 use, they could ask the Supreme Court of Canada for an advisory ruling. Again, the ruling wouldn’t void the law. But having legal commentary from the nation’s highest court would, I hope, up the political ante.

Third, s. 33 only applies to Charter commitments in s.2 and s.7 to 15. Litigants could perhaps recast their arguments around other rights such as those in s.3 to 6. When the Ford government invoked s.33 to override a 2021 court ruling that struck down a law on third party election spending on s.2 (free expression) grounds, the litigants pivoted to s.3 which protects the right to vote. This argument was successful at the Ontario Court of Appeal, showing that with some creative lawyering (and receptive adjudication), s.33’s legal force can be blunted. Unlike the first two options, this one enables courts to strike laws down, which makes it a better option to provide legally effective remedies. ■