Here Be Unchartered Waters

Introduction

This week has been an unprecedented one in Canadian history, and one that will invariably result in development of novel Charter jurisprudence.

On Sept. 12, 2018, the Ontario legislature introduced Bill 31 – Efficient Local Government Act, 2018 in response to the Ontario Superior Court of Justice decision on Sept. 10, 2018 that ruled Bill 5 – Better Local Government Act, 2018 was unconstitutional, as it violated the s. 2(b) Charter rights of the candidates in the upcoming municipal election due to the timing of the Bill, and the impact on the voters due to its content.[1] This decision also ruled that the constitutional violation of the fundamental freedom of expression could not be demonstrably justified in a free and democratic society and saved by the reasonable limits clause under s. 1 of the Charter.[2]

In response to the court’s ruling, the government has invoked s. 33 explicitly in its introduction of Bill 31. This type of use of the notwithstanding clause is entirely unprecedented in Canada, and already has revealed some questions of profound importance.

Part 1 – Unprecedented Nature of this Invocation of Section 33

With the exception of Quebec, the notwithstanding clause has been used exceedingly sparingly in Canada. Quebec invoked it routinely under the Parti Québécois as a form of political protest, and then notably in 1988, following the Supreme Court of Canada decision Ford v. Quebec (Attorney General).[3] Although it was contemplated and introduced in Alberta, and passed but not brought into force in Yukon, the only province to actually implement it prior to this time is in Saskatchewan.

On April 9, 1984, in response to a breakdown in talks between employers and dairy unions, the Conservative legislature of Saskatchewan enacting The Dairy Workers (Maintenance of Operations) Act, S.S. 1983‑84, c. D‑1.1. The Act came into force immediately, and had the temporary effect of prohibiting dairy employees from striking, or from employers from locking them out.

The applicants, which consisted of 4 unions and 14 individuals, applied to the Court of Queen’s Bench for an application for a declaration that this Bill was unconstitutional, including on the grounds that it violated the fundamental freedom of freedom of association under s. 2(d) of the Charter. Although the Court of Queen’s Bench dismissed the application, the Saskatchewan Court of Appeal reversed this dismissal and found a s. 2(d) Charter violation.[4] The subsequent appeal to the Supreme Court of Canada ultimately found in the majority that either s. 2(d) was not violated, or that the Act could be justified under s. 1.[5]

However, prior to the decisions of the Supreme Court, the legislature of Saskatchewan introduced Bill 144 – The SGEU Dispute Settlement Act,[6] invoking s. 33 of the Charter in doing so. What is worth noting is that this Bill did not involve the same dispute with the same workers in the dairy industry. This was a Bill to address a labour dispute with the Saskatchewan Government Employees’ Union. It was therefore a new piece of legislation, and not invoked in a reactive manner to a specific judicial ruling on the same set of facts.

The preamble to the Bill also acknowledged that s. 33 was only being invoked given the pressing public nature of the dispute, as well as the legal ambiguities that were currently at stake due to the appeal underway,

Whereas Section 33 of the Canadian Charter of Rights an (sic) Freedoms, exists for the purpose of permitting publicly accountable legislators to finally determine essential economic and social policy; and
Whereas the present state of the law is unclear as to the meaning of certain provisions of the Canadian Charter of Rights and Freedoms and The Saskatchewan Human Rights Code

The invocation of s. 33 was therefore accompanied with a just as pronounced recognition of the rule of law, the courts, and the importance of judicial interpretation into these constitutional issues. What is clear is that this invocation of s. 33 was not done in a reactive and responsive manner to a judicial ruling that the province disagreed with.

More recently however, the Saskatchewan legislature has also invoked the notwithstanding clause in Bill 89 –The School Choice Protection Act/Loi sur la protection du choix d’école,[7] introduced on May 30, 2018. The legislative backdrop here is more complex, because although the legislature was also acting in response to a judicial decision, it was not technically one interpreting the provision of a new bill.

The Queen’s Bench for Saskatchewan ruled in Good Spirit School Division No. 204 v Christ the Teacher Roman Catholic Separate School Division No. 212,[8] that the province’s funding of non-minority faith students violated the fundamental freedom of conscience and religion under s. 2(a) of the Charter, was also discriminatory under s. 15(1), and could not be saved under s. (1).

Although the power exerted by the province here was under The Education Act, 1995,[9] and The Education Funding Regulations,[10] these were not examples of the legislature reacting to a poorly drafted or executed Bill, but rather a new challenge to an existing exercise of power and administration. The litigation in question spanned over a decade prior to the decision. Bill 89 sought to amend these Acts, and do so in a manner which would be constitutionally complaint at the time. Perhaps more importantly, the province is also appealing the decision so that the courts still have the ability to weigh in on this further.

Summary

In conclusion, s. 33 has only been used fully in 1 common law jurisdiction in Canada – Saskatchewan – and in both the instances where it has been used, it has not been in reaction to a new law that has been immediately struck down by the courts as being unconstitutional. In both instances the legislature has recognized the importance of the courts, and arguably the supremacy of the judicial system in making constitutional determinations.

The province in these cases did not seek a stay of the judicial ruling of unconstitutionality. A stay has reportedly only been granted in the second case pending the appeal of it to the Saskatchewan Court of Appeal.[11] The Province of Ontario is also expected to appeal the judicial ruling in Toronto v. Ontario.

Part 2 – A Stay or a Standing Order

The hearing for the stay will be held on Sept. 18, 2018, with the Province requesting a 1-judge panel. In response, the Court of Appeal convened a 3-member panel, which could suggest that they intend or are willing to make substantive rulings on a first instance to that court. The basis for doing so would be what appears to be an emerging crisis for the City Clerk in preparing for this election, as she can no longer prepare for both possibilities simultaneously.

At the same time, the legislature is convening a special sitting at midnight tonight to continue the debate. What may need to be addressed prior to the appearance at the Court of Appeal are two motions brought by the official opposition, based on the following legislative standing orders:

Matters out of order in debate

23. In debate, a member shall be called to order by the Speaker if he or she:

…

Matters sub judice

(g) Refers to any matter that is the subject of a proceeding,

(i) that is pending in a court or before a judge for judicial determination; or

(ii) that is before any quasi-judicial body constituted by the House or by or under the authority of an Act of the Legislature,

where it is shown to the satisfaction of the Speaker that further reference would create a real and substantial danger of prejudice to the proceeding.

…

May not renew motion, etc., once decided

52. No motion, or amendment, the subject-matter of which has been decided upon, can be again proposed during the same Session.

Although the Standing Orders are also currently being amended by the majority government, there is no indication that these particular provisions are being targeted, and have already been invoked prior to the anticipated changes.

The arguments by the opposition are that because this matter is clearly before the court, in fact this very week, that debate on Bill 31 should at least be suspended for the duration. If that is the case, any further delay on Bill 31 would mean that the Toronto election will proceed as it has historically.

The Government House Leader has cited parliamentary procedure[12] to explain this first Standing Order,

The convention does not apply to legislation or to the legislative process as the right of Parliament to legislate may not be limited. If the sub judice convention were to apply to bills, the whole legislative process could be stopped simply by the initiation of legal proceedings in any court in Canada.

Of course this would be intended to protect the legislative process from new litigation initiated as a result of the introduction of a Bill, not litigation from a Bill that is already in the courts, and is now subject to the reintroduction of a new Bill. Technically the members are debating Bill 31, not Bill 5, which is why the second motion is more interesting, and also has broader ramifications.

The rationale for the second motion was explained by the Opposition House Leader as follows,

However, Bill 31 isn’t about the appropriate use of the “notwithstanding” clause. The focus of Bill 31 is changes to the municipal election process in Toronto, York, Peel, Niagara and Muskoka, which is identical to the subject matter that we, as a Legislature, debated and voted on in Bill 5 just a little over a month ago.

Standing order 52 is designed to reflect the parliamentary principle that says that a decision, once made, must stand in order to protect the House from the risk of making contradictory decisions on the same issue in the same session.

The fact that the government has a majority and has the numbers necessary to pass both bills is not relevant to the discussion. House of Commons Procedure and Practice notes: “If a decision is taken on the first bill, the other may not be proceeded with.” This is to protect the principle that standing order 52 is based upon.

So the question that standing order 52 asks us to consider isn’t whether the inclusion of the “notwith-standing” clause makes Bill 31 different from Bill 5; it asks us if the new language in Bill 31 makes it sufficiently different from Bill 5 to warrant consideration in the same session. In other words, is Bill 31 different enough from Bill 5 to be considered by this House? In our opinion, the answer is no.

In reviewing Bill 31, it is indisputable that much of the language is exactly what appeared in Bill 5. In many cases, the sections mirror each other word for word. While there are a few minor changes when it comes to things like the number of clauses and dates, there really aren’t any substantive differences between the two bills.

I’d also like to add that even though standing order 52 emphasizes the similarity of the subject matter—the methods and intent of the two bills—over the similarity in language between the two bills, the fact that there are striking similarities between the measures proposed and the wording used in Bill 31 and Bill 5 makes it easy to make the argument that the bills are virtually identical from the perspective of standing order 52.

The subject matter of Bill 31 is changes to the municipal election processes of Toronto, York, Peel, Niagara and Muskoka, just as the subject matter of Bill 5 was changes to the municipal processes in Toronto, York, Peel, Niagara and Muskoka. The application of the “notwithstanding” clause has no impact on the why or how of the bill.

…

And let’s be clear: We’re not voting on a government’s right to use the “notwithstanding” clause. That’s not what Bill 31 is designed to facilitate. We’re being asked to vote, again, on a matter the House has already pronounced itself on. Bill 31 does exactly the same things exactly the same way that Bill 5 proposed to do, and we voted on Bill 5 just a few weeks ago.

[emphasis added]

The public policy rationale behind Standing Order 52 is rather clear. If a government was unsuccessful in passing a bill, for whatever reason at all, they could simply reintroduce the bill over and over and over again in an abuse of legislative procedure that would bring the entire government to a standstill. This possibility for abuse is particularly acute in a majority government, where the bill is being brought by that same majority.

If the Speaker rules that Bills 5 and 31 are on a substantively similar subject matter, Bill 31 cannot proceed, and the municipal election proceeds without the changes. This is a distinct possibility, as the same rationale used in the sub judice rule could otherwise apply here. The legislature could circumvent Standing Order 52 at any time, simply by changing a few words or schedules to what is effectively the same Bill.

If the Speaker does rule that the addition of s. 33 to Bill 31 is sufficient to differentiate it from Bill 5 for the purposes, the government may still be blocked from proceeding with the changes on the grounds that Bill 31 is unconstitutional on other grounds.

Part 3 – Retroactive Use of Notwithstanding Clause

As indicated above, there is very little jurisprudence on s. 33, which itself speaks to the special and highly reserved status it has been afforded within our legal system. The single case before the Supreme Court of Canada in Ford v. Quebec examined the validity of s. 33, not just in the omnibus nature of its enactment, but also the retrospective nature in which it was used in Quebec. Although the constitutionality of the former was affirmed, the latter was not.

The unanimous reasons by the Court were quite clear about the rule against retroactive operation, which has been frequently affirmed by the courts, and is perhaps the rule of construction that is most firmly entrenched. The Court referenced its previous statement in Gustavson Drilling (1964) Ltd. v. Minister of National Revenue,[13] to illustrate,

The general rule is that statutes are not to be construed as having retro­spective operation unless such a construction is expressly or by necessary implication required by the language of the Act. An amending enactment may provide that it shall be deemed to have come into force on a date prior to its enactment or it may provide that it is to be operative with respect to transactions occurring prior to its enactment. In those instances the statute operates retrospectively.

In that case, the Court differentiated the two Acts because despite any superficial differences did not affect past transactions, as it did not alter any rights of a past time,

… it does not reach into the past and declare that the law or the rights of parties as of an earlier date shall be taken to be something other than they were as of that earlier date.

The problem is that the use of s. 33 in Bill 31 is deliberately intended to reach into the past and declare that the rights of the province as it related to Bill 5 should affect the future transactions of the legislature.

In Ford v. Quebec, the Court dealt with interpreting an ambiguous provision as to whether it applied retroactively. In this context, the Court indicated that such provisions should be interpreted narrowly, especially given the supremacy of the constitution in our legal system,

Section 7 of An Act respecting the Constitution Act, 1982, is to the extent of this inconsistency with s. 33 of the Canadian Charter , of no force or effect, with the result that the standard override provisions enacted by s. 1 of that Act came into force on June 23, 1982 in accordance with the first paragraph of s. 7 .

What this means is that if the Speaker rules favourably for the majority on Standing Order 52, the province will still have to deal with the challenge that absent the s. 33 additions the two bills are substantially similar, and that the s. 33 override was intended to apply to a retrospective ruling by the court. An interpretation of Bill 31 in this manner would also result in the province being denied the ability to enact legislation to directly impact the impending municipal election.

The impact of the Speaker’s ruling on the Standing Order therefore has consequences in the litigation of Bill 5 and in the validity of Bill 31.

Part 4 – Future Questions

Questions that remain unanswered include what happens if the province proceeds with Bill 31, even in light of an adverse ruling by the Court of Appeal prohibiting them from doing so. Although this is an unlikely scenario, it may give rise to renewed calls for use of the federal disallowance power.

On Sept. 13, 2018, Toronto City Council passed a resolution asking the federal government to use this power. Of course this resolution has no binding ability on federal government, and the Prime Minister has already noted that he will not interfere, even though 25 Toronto MPs members have called for him to do so. In the unlikely scenario where a government plans to proceed above and beyond a court ruling or injunction for them not to, these calls may be renewed.

Because the disallowance power has not been used since 1943, it’s uncertain whether the federal government would be able to even do so. The Supreme Court of Canada discussed the power in 1938 in the Disallowance Reference,[14] affirmed the power as a subsisting exercise not subject to any limitations or restrictions beyond form. However, there has been so much time, jurisprudence, and development of unwritten constitutional principles that it is difficult to predict whether this mechanism would work. Worth noting is that it is these same unwritten constitutional principles that the province is deliberately overlooking in their implementation Bill 31, including their invocation of s. 33, which is where the other remaining issue can be found.

The other significant remaining constitutional question is how the exercise of s. 33 by a court will be reviewed. Although the Court in Ford v. Quebec suggested in obiter that s. 1 does not apply to s. 33, there is some early Charter discussions in the literature indicating that it could or that it should. Recent jurisprudence has extended the inquiry of s. 1 to the constitutional protection to treaty rights of indigenous peoples in Canada, and we may see a similar extension here in this case. There have also been questions about international law confining the exercise of this power. Finally, if the Toronto v. Ontario decision is interpreted or expanded to either s. 3 Charter rights or unwritten constitutional principles, a s. 33 override cannot apply.

Conclusions

The only thing that remains clear already with this case is that it is all novel and untested from a constitutional perspective, and irrespective of any outcome, will help advance our understanding of the Charter and its complex interplay with the legislature.

The legislature in Ontario continues at midnight tonight in an unusual sitting, and one of the questions that will invariably arise in future litigation is why the conduct of the government required this immediate action for this particular election, as opposed to introducing it immediately following for any subsequent municipal elections. Lack of cogent responses on this may give rise to bad faith scrutiny by the courts in a manner we have not observed since Roncarelli v. Duplessis.[15] What is clear is that the desired outcome by the province certain could have been achieved more effectively, efficiently, and without a constitutional crisis, by refraining from interfering in a municipal election that was already underway.

Litigation is invariably expensive, and constitutional litigation especially so. The numerous legal challenges ahead, in this matter and on entirely unrelated issues, will certainly cost taxpayers a considerable sum. History will gauge whether this was an appropriate and necessary exercise of power by government, and will also determine whether it assisted our democracy by strengthening our fundamental institutions, or ultimately undermined them.

————–

[1] City of Toronto et al v. Ontario (Attorney General), 2018 ONSC 5151 at para 20 [“Toronto v. Ontario”].

[2] Ibid at para 78.

[3] [1988] 2 SCR 712 [“Ford v. Quebec”].

[4] Retail, Wholesale and Department Store Union, Local 544 v. Saskatchewan, 1985 CanLII 184 (SK CA).

[5] RWDSU v. Saskatchewan, [1987] 1 SCR 460.

[6] An Act to provide for Settlement of a Certain Labour-Management dispute between the Government of Saskatchewan and the Saskatchewan Government Employees’ Union, SS 1986 c 111.

[7] SS 2018 c 39.

[8] 2017 SKQB 109 [“Good Spirit”].

[9] SS 1995, c E-0.2.

[10] RRS c E-0.2 Reg 20.

[11] CBC News,“Court order to stop government funding for non-Catholic students at Catholic schools on hold,” June 16, 2018, available at: https://www.cbc.ca/news/canada/saskatchewan/catholic-schools-non-catholic-students-notwithstanding-1.4709575

[12] House of Commons Procedure and Practice, Second Edition, 2009, Edited by Audrey O’Brien and Marc Bosc, at 268.

[13] [1977] 1 SCR 271.

[14] Reference re The Power of the Governor General in Council to Disallow Provincial Legislation and the Power of Reservation of a Lieutenant-Governor of a Province, [1938] SCR 71 [“Disallowance Reference].

[15] [1959] SCR 121.