Judges on Roller Skates

A number of comments were received via Twitter concerning my blog post this morning on why the federal party leaders ought to make a declaration that the federal power of disallowing provincial laws (found in section 90 of the Constitution Act, 1867) will be used regarding any provincial law enacted (or re-enacted) by a provincial legislature invoking the notwithstanding clause of the Charter of Rights and Freedoms (section 33 of the Constitution Act, 1982.) I take this time now to acknowledge and respond to those comments. 

POLITICAL FIREWORKS

A good number of people pointed out that the action I was suggesting the federal government take would, if actually implemented, make Quebec and likely other provinces extremely unhappy. I am aware of that. I am aware that - as they have done for 50 years or more - the nationalists and nationalist party in Quebec (and in Ottawa) would make hay out of such an action, to their short-term political and electoral benefit. No doubt about that. The cynical might say that the newly elected Bloc MPs will be glad to take advantage of the resulting fuss to win re-election to vest their pension rights. 

My response is this: nothing we can do (or not do) will make the nationalist sentiment in Quebec more content with being part of Canada. Assuming a trade of this kind would be acceptable, I am not willing to seriously consider sacrificing the fundamental freedoms provided to all citizens of Canada for the purpose of trying to placate those people who can never be placated. It is my view that constitutionally protected rights are not to be respected only when it is politically convenient to do so. I am never going to waver from that position, I fear. 

I would also observe that Pierre Trudeau made a very successful electoral career out of defying the nationalist element in Quebec, repeatedly. Voters vote for various politicians for reasons at various times. But one thing I am sure of: nobody ever voted for a political coward because they were a political coward. I think the results of the unnecessary federal election of 2021 proves that beyond doubt, where the three federal leaders outbid themselves in their efforts to assure Quebec voters they would not trample on Bill 21. And all that pandering got them nothing and only profited the Bloc. 

MR HALL'S THREE COMMENTS 

Mr. Thomas Hall provided the most sustained commentary on my post. Mr. Hall gives every appearance of being a fair and thoughtful person. He has an excellent legal mind and is a good commentator on Canadian political/constitutional matters on twitter. I respect his views and knowledge and I have on several occasions learned things from him over the years. He is always polite and well reasoned in what he says. So I take his comments seriously. 

Mr. Hall did not like that blog post, I think that is fair to say, and made three points. 

POINT 1

First Mr. Hall says I was too categorical in my original post in saying that the use of section 33 prevents judicial review on Charter grounds. He said, "I disagree: the court should first decide whether the right is violated and, if so, that s. 33 overrides it and preserves the statute."

This is, in my view, true but largely besides the point. If a case was brought on Charter grounds, then the process would be as he suggests. However, the right at stake in regard to Bill 21 is clearly in the nature of "religious freedom," and is, therefore, squarely within Section 2 of the Charter, and, in consequence, clearly subject to s. 33 over-ride because section 33 specifically notes that it works to allow provincial laws to operate notwithstanding the protections of section 2 of the Charter. There is, to my knowledge, no case that suggests that there is a legal test to decide if section 33 over-rides a right once identified as being of a category falling within a right neutralized by section 33. It just does. 

My view on this point is strengthened by the fact that no one has commenced a Charter challenge against Bill 21. (As noted yesterday, there is a court challenge under way that is, as I understand it, based constitutionally protected minority language education rights, not on Charter grounds). [see note 1 below]

POINT 2 

Mr. Hall notes that Mark Bourrie has "suggested that a previous court decision saying that provinces had no power to legislate wrt religion" exists and that this case might apply to the Bill 21 situation, "... which would be a better outcome" than federal use of the notwithstanding clause. 

I don't know of this case, but I assume it arises out of pre-Charter jurisprudence where there were some decisions premised on an "implied bill of rights." I have no objection to someone bringing an action against Bill 21 based on this "implied bill of rights" idea, if that is what it is. So far it has not been done and would be a high risk legal gambit with, in my view, a very low chance of success. [see note 2 below]

Given what we are facing, I do not think the federal party leaders should wait around for this long-shot possibility. That is exactly what they should not do. 

POINT 3

The final point and, of course, this is the dangerous one. Mr. Hall says what Professor Hogg didn't say. 

"IMO disallowance shld be reserved for a provincial law that wld adversely affect the federal union b4 it could be dealt w/ by the courts. For all other cases, there is now a solid constitutional convention against the federal gov's imposing its will in any matter within provincial jurisdiction under the Constitution."

As a preliminary matter, I would note: if point 2 says there is a Burrie case that says that religion isn't within the scope of provincial jurisdiction, we now have a contention that there is convention that prevents federal action on matters within provincial jurisdiction, including religion, one can only assume, given that that is what is at stake here in the Bill 21 controversy. So we are saying religion is both not a provincial matter at all, so lets over-turn Bill 21 on that ground, but, at the same time, lets not use the s 90 power to invade a provincial case on religious rights. I understand the idea of arguing in the alternative, and will do so below myself, but this is not a consistent approach, really. 

But no matter, the claim is for a solid constitutional convention against the federal government imposing its will on the provinces. The careful reader will note that Mr. Hall does not say there is a convention making the use of section 90 of the Constitution Act, 1867 unconstitutional.  Good thing, too, as we know that conventions aren't law (as will be discussed below) and so it would be, one would think, impossible for a mere convention to vacate written text found in the constitution. 

Mr. Hall presents no evidence for this convention. Again, Professor Hogg didn't say there was a convention in this regard in his constitutional textbook comments on the federal disallowance power.

In light of that, and in light of the fact that s. 90 is law, I would: (a) deny that there is any such convention as Mr. Hall describes, outside of the division of powers realm, (b) state that, if there is such a convention, it doesn't apply to s. 90 of the Constitution Act, 1867, and (c) if there such a convention, and if it does apply to section 90 (which it doesn't), it has no legal force such as to prevent the positive act by the federal government bringing section 90 into force regarding a particular provincial law. 

JUDGES ON ROLLER SKATES

During the 1981 constitutional battles, I was a student at Simon Fraser University in Burnaby, BC. I had the good fortune of having a political science course at that time with Professor Edward McWhinney. He was a recognized constitutional expert and was often on TV during this period. I remember in particular his comments on the 1981 patriation reference case of the Supreme Court of Canada which dealt largely with the ideas of constitutional conventions. He referred to it as a case of "judges on roller skates." What he meant was that there as majority of the court willing to say there was a constitutional convention preventing the federal govt of Canada requesting an amendment to the British North America Act without provincial support, but some of those judges - those with roller skates - switched sides on the question of whether that convention was legally enforceable. 

Here is the headnote from the case. 

Question 3—Is the agreement of the provinces of Canada constitutionally required for amendment to the Constitution of Canada where such amendment affects federal-provincial relationships or alters the powers, rights or privileges granted or secured by the Constitution of Canada to the provinces, their legislatures or govern­ments?

 

Answer —For the reasons stated in answer to Ques­tion 2, as a matter of constitutional con­vention, "yes". The Chief Justice and Estey and McIntyre JJ. dissenting would answer "no".

 —As a matter of law, "no". Martland and Ritchie JJ. dissenting would answer "yes".

This provides support for my contention that should the convention suggested by Mr. Hall exist, and not only exist, but exist in the face of the written text of the Constitution Act, 1867 (which is extremely unlikely), the judges on roller skates have made clear that it would have no legal force in opposition to a positive act by the federal government to bring section 90 of the Constitution Act, 1867 into force regarding a particular provincial law.  

POSSE OF COWARDS 

And that is what I do think: that the 3 federal leaders, that posse of cowards, ought to make a joint declaration. State that, henceforth, the federal disallowance power will be used (and only used) to disallow any and all provincial laws, from all provinces, that purport to rely on the notwithstanding clause.

TARGETING OUT A MINORITY 

And I say again, that any provincial government can argue in court that its infringement on constitutional rights can be justified. I do not say that any rights are absolute. What I do say is that section 33 allows a provincial government to, in effect, target a particular minority, which is exactly what Bill 21 has done. I will never accept that as a legitimate constitutional use of power in Canada. 

Notes [added Jan 1 2022]

1. Contrary to what I said above, there has been a run at Bill 21 on Charter grounds. See my blog dated Jan 1 2022 on the Superior Court decision in Hak.  The court declined to look behind s. 33 and upheld the law while declining to even consider whether the law infringed section 2 Charter rights. 

2. I  believe this case, or cases, were advanced in the Hak case and were rejected.