Notwithstanding in Ontario, Yet Again

Nearly three years ago, I wrote here that the use of s. 33 in Ontario constituted “UnChartered waters.”

Given the successful appeal in that case, the use of the clause ultimately wasn’t necessary. However, I was fortunate to appear as an intervener before the Court to note that the potential use of the notwithstanding clause would presumably emerge in circumstances that were clearly pressing and substantial, and asked the Court to carefully scrutinize any such rationale as a result. That decision is still pending.

Perhaps because the case involved the elections of a single city (albeit the largest in Canada, with its own municipal statute), the rest of Canada did not pay much attention. With the next use of the notwithstanding clause recently, that may suddenly change.

The Ontario Superior Court of Justice recently released the decision in Working Families Ontario v. Ontario, finding that parts of the amended Election Finances Act were unconstitutional, as they lacked minimal impairment. The government was left in the awkward situation of trying to explain why the longer time limits they imposed were justifiable, when the materials filed under the previous government explicitly relied on a shorter timeframe,

[65] Even more graphically, the government’s own expert witnesses in the present case have all testified that a 6-month pre-election period was the appropriate and effective period in which spending restrictions for political advertisements should operate….

[66] Without meaning to stress the obvious, it is hard to see how 12 months is minimal if 6 months will do the trick…

…

[76] The Bill 254 amendments, all of which are built on implementing and enforcing the 12-month pre-election regulated period in now found in section 37.10.1(2), do not pass the minimal impairment test. They are therefore not reasonable limits on the Applicants’ rights of free expression. They violate section 2(b) of the Charter and are not saved under section 1.

Unlike Bill 31, which was introduced by an Attorney General who is not a lawyer (in Ontario), Bill 307 was introduced by an Attorney General who is a member of the bar, and did not refer to s. 33 as a legal loophole. Instead, the Bill was introduced as following,

The Protecting Elections and Defending Democracy Act, 2021, is a bill that builds on the important safeguards passed by this Legislature to defend the essential voice of Ontarians in their own elections through the Protecting Ontario Elections Act.

We have consistently stated in this House that individual voters should be the ones determining the outcome of Ontario elections, not American-style political action committees or unaccountable pop-ups.

Speaker, the Protecting Elections and Defending Democracy Act would restore responsible guardrails to ensure wealthy elites, special interest groups and corporations won’t drown out the voice of individuals.

While all of these goals are indeed commendable, the controversial aspects of the Bill were not mentioned during First Reading by the government at all,

Application of Charter and Human Rights Code

53.1 (1) Pursuant to subsection 33 (1) of the Canadian Charter of Rights and Freedoms, this Act is declared to operate notwithstanding sections 2 and 7 to 15 of the Canadian Charter of Rights and Freedoms.

Human Rights Code

(2) This Act applies despite the Human Rights Code.

If enacted, this would indeed be the first time the notwithstanding clause would be used in Ontario, and its introduction in this way is cause for concern when supported by a lawyer in cabinet.

The significance of this still seems to be lost on many, with some wondering why it exists in the Charter, except for it to be used. The answer to this is not strictly legal, and can be found more in the practical realities of the constitutional amendment formula found in ss. 38-49 of the The Constitution Act, 1982,

38. (1) An amendment to the Constitution of Canada may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by
…
(b) resolutions of the legislative assemblies of at least two-thirds of the provinces that have, in the aggregate, according to the then latest general census, at least fifty per cent of the population of all the provinces.

The Parti Quebecois that governed Quebec in 1982 never agreed to the Charter or the Canada Act, 1982, but were still bound by it. It was for this reason that they routinely invoked s. 33 in every Act, between 1982-1987, after which they lost power in the province.

The situation in Ontario has always been very distinct. With the only other province with sufficient population to allow a constitutional amendment, refraining entirely from the notwithstanding clause was necessary to ensure the very legitimacy of the Charter. Ontario comprises 38.8% of the population (compared to Quebec’s 22.5%), and this number is only expected to go up (approaching half of all of all of Canada’s population). This means it becomes very difficult to amend the constitution without Ontario’s full participation and support.

Although there have been several minor constitutional amendments since 1982, most notably the Fair Representation Act, 2011 that modified the formula for seats in the House, attempts at Meech Lake in 1987 and Charlottetown in 1992 were unsuccessful in gaining the approval and acceptance of Quebec.

At the same time, Quebec has introduced Bill 96 to bolster French language and culture, while of course invoking the notwithstanding clause. This is the second time this government has done this, following its use in Bill 21, involving religious symbols.

If Ontario is seen to be opting out of the binding nature of the Charter, while there is a resurgence to s. 33 use in Quebec, legislatures across Canada could follow suite, rendering these basic Charter protections meaningless. That would be nothing less than a constitutional crisis, but also a complete devolution of the rule of law in a constitutional democracy.

Pearl Eliadis notes that international human rights law allows for governments to derogate from certain rights, but this is only possible in cases of public emergencies,

When fundamental human rights and freedoms are at stake, the political calculus should never be the main yardstick against which the legal reality of the notwithstanding clause is measured. Used as a campaign platform, it announces the intent to do irreparable harm to our shared citizenship, to Canada’s constitutional fabric, to our international reputations, and to the rights of those who are targeted.

She refers to a 1938 case of the Supreme Court of Canada, in Reference Re Alberta Statutes – The Bank Taxation Act; The Credit of Alberta Regulation Act; and the Accurate News and Information Act to illustrate that the courts can still invalidate legislation that violate fundamental freedoms,

As stated in the preamble of The British North America Act, our constitution is and will remain, unless radically changed, ” similar in principle to that of the United Kingdom.” At the time of Confederation, the United Kingdom was a democracy. Democracy cannot be maintained without its foundation: free public opinion and free discussion throughout the nation of all matters affecting the State within the limits set by the criminal code and the common law. Every inhabitant in Alberta is also a citizen of the Dominion. The province may deal with his property and civil rights of a local and private nature within the province; but the province cannot interfere with his status as a Canadian citizen and his fundamental right to express freely his untrammelled opinion about government policies and discuss matters of public concern. The mandatory and prohibitory provisions of the Press Bill are, in my opinion, ultra vires of the provincial legislature. They interfere with the free working of the political organization of the Dominion. They have a tendency to nullify the political rights of the inhabitants of Alberta, as citizens of Canada, and cannot be considered as dealing with matters purely private and local in that province. The federal parliament is the sole authority to curtail, if deemed expedient and in the public interest, the freedom of the press in discussing public affairs and the equal rights in that respect of all citizens throughout the Dominion. These subjects were matters of criminal law before Confederation, have been recognized by Parliament as criminal matters and have been expressly dealt with by the criminal code. No province has the power to reduce in that province the political rights of its citizens as compared with those enjoyed by the citizens of other provinces of Canada. Moreover, citizens outside the province of Alberta have a vital interest in having full information and comment, favourable and unfavourable, regarding the policy of the Alberta government and concerning events in that province which would, in the ordinary course, be the subject of Alberta newspapers’ news items and articles.
[emphasis added]

Although the Court in R. v. Hape indicated at para 39 that a legislature may violate international law if it does so expressly, it also indicated at para 52 that deference required by comity ends where clear violations of international law and fundamental human rights begins.

Since then, numerous other cases, such as United States v. Burns, Suresh v. Canada (Minister of Citizenship and Immigration), Application under s. 83.28 of the Criminal Code (Re), Canada (Justice) v. Khadr, and Canada (Prime Minister) v. Khadr, suggest that principles of fundamental justice may require the Court to override the legislature’s explicit intent, where there is a clear and troubling violation of international law. Otherwise, a legislature could pass a statute justifying torture (or some other egregious power), and simply invoke s. 33 to claim immunity from any judicial scrutiny. This would be entirely inconsistent with our framework of constitutional democracy.

The Court’s recent decision in Nevsun Resources Ltd. v. Araya could already demonstrate how a legislature may be prevented from derogating from international law, even if invoking s. 33,

[83] Within customary international law, there is a subset of norms known as jus cogens, or peremptory norms, which have been “accepted and recognized by the international community of States as a whole . . . from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character” (Vienna Convention on the Law of Treaties, Can. T.S. 1980 No. 37 (entered into force 27 January 1980), art. 53). This Court acknowledged that “a peremptory norm, or jus cogens norm is a fundamental tenet of international law that is non-derogable” (Kazemi, at para. 47, citing John H. Currie, Public International Law (2nd ed. 2008), at p. 583; Claude Emanuelli, Droit international public: Contribution à l’étude du droit international selon une perspective canadienne (3rd ed. 2010), at pp. 168‑69; Vienna Convention on the Law of Treaties, art. 53).
[emphasis added]

The Court here also cited and explained Hape, while still acknowledging that customary international law is only incorporated into our common law absent legislation that clearly overrules them.

Could the Court itself ultimately opine explicitly on the appropriate use of s. 33? While this would be less than ideal in terms of the balance between the legislature and the judiciary, it may ultimately become necessary if there is routine invocation of the notwithstanding clause across Canada, and in ways that foster significant miscarriages of justice.

Before that happens, the hope has always been that the public would scrutinize such use of extraordinary powers, and hold elected officials accountable for purporting to be entirely immune from any checks or balances on power. Courts scrutinizing s. 33 in this way could still refrain from striking down legislation while speaking of its consistency with the constitution and international law, thereby informing the public about the appropriateness of any claimed special circumstances. This approach risks receiving the wrath of public officials who seek immunity from judicial scrutiny, and should accordingly be used sparingly.

The Advocates Society goes further, and explains how public officials undermine the independence of the judiciary and the rule of law by attacking the judiciary,

Public officials should desist from noting that judges are appointed and not elected as a means of criticizing court decisions that challenge legislative or executive action. As far as judicial independence is concerned, the fact that Canadian judges are unelected is a positive feature of our democratic system. It ensures that judges, insulated from the day-to-day opinions and will of the majority, are able to decide cases without regard to the popularity or influence of the litigants. The judiciary’s unelected status underlies their constitutional
legitimacy as a co-equal branch of government. When a public official suggests it is illegitimate for a court to assess the constitutionality of a law, this weakens public confidence in the judicial branch. It sows confusion about the proper exercise of the court’s constitutional mandate. By undermining respect for judicial decisions, it can also threaten public order…

While political leaders can and should participate in debate about the issues that may come before the courts, respect for judicial independence ought to move political leaders to be restrained and thoughtful when they participate in such debates. They should neither engage in nor encourage criticism that attacks individual judges or the institution of the judiciary.

Lawyers and civic leaders should also bear in mind that judges are limited in their ability to defend themselves in the public sphere. For that reason, the independent private bar and other civic leaders must step forward when necessary to preserve and support the principle of judicial independence and to maintain public confidence in the administration of justice.

The appointed nature of the judiciary actually provides greater legitimacy to the analysis and decisions of the courts than it does the legislature in this context, as its independence removes it from any pecuniary and selfish interests. The alternatives, as illustrated in American cases like Caperton v. A. T. Massey Coal Co., can create such an extreme probability of bias as to render the judiciary non-functional.

The emergence of s. 33 particularly in the context of election financing in Bill 307, and purported objectives of avoiding American-style political problems and ensuring responsible guardrails against special interests is particularly poignant. The electorate may never have the opportunity to see these inconsistencies or identify its shortcomings, and it is especially for that reason that the independent private bar and other civic leaders must also maintain the public confidence in the Charter and the ability of the courts to apply it to legislation.