A New Constitutional Convention Regarding the Notwithstanding Clause

Professor Alex Colangelo has recently suggested that the federal power of disallowance be used in a phased way in regard to provincial legislation relying on the notwithstanding clause. The federal government, he suggests, should announce that it will use the disallowance power where any provincial legislature uses the notwithstanding clause preemptively - that is, before any court has ruled that the provincial legislation infringes on protected Charter rights, rather than afterwards. 

Professor Colangelo's proposal has a second part. The federal government would announce - at the same time - that it would not use the federal disallowance power to void any use of the notwithstanding by a provincial legislature which is done in response to a judicial declaration of consitutional invalidity of some part of a provincial statute. 

I support Professor Colangelo's proposal. This post will try and explain why I do and why I believe others should also support it. 

Background 

The Constitution of Canada was amended in 1982. It now includes an amending formula (without reference to the UK) and a Charter of Rights and Freedoms. Section 35 of the Constitution Act, 1982 provides the recognition and affirmation of aboriginal rights. 

The introduction of a Charter of Rights and Freedoms was a significant structural change to the Canadian constitution, authorizing and demanding a much greater role for the Canadian judiciary as regards the judicial review of federal and provincial legislation for compliance with constitutional requirements. In the fraught political negotiations between the provinces and the federal government in 1981, great concern was expressed by the provinces regarding the dangers of the greater role of judicial review. Well founded or not, those concerns eventually led to the inclusion of a notwithstanding (or over-ride) clause in the final agreed-to package that was approved by the UK parliament in 1982. 

The notwithstanding clause is section 33 of the Constitution Act, 1982. It provides:

Exception where express declaration

33 (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.

Operation of exception
(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration. 

Five year limitation

(3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.

Re-enactment
(4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1).

Five year limitation
(5) Subsection (3) applies in respect of a re-enactment made under subsection (4).

Two things of note. Section 33 only allows for the over-ride of certain parts of the Charter. It also does not provide an override regarding the aboriginal rights found in section 35.

Section 90 of the Constitution Act, 1867, provides to the federal government of Canada the ability to disallow provincial legislation.  This provision was last used in the 1940s. There is some debate about the legitimacy of the section 90 power, particularly as it regards the modern conception of Canadian federalism being an interaction between equals. But the section 90 power existed in 1981 and still exists today. The Charlottetown Accord in the 1990s provided for the removal of section 90, but, of course, the Charlottetown Accord failed. The fact that the provinces sought to bargain for the removal of the section 90 disallowance power in the Charlottetown Accord is evidence that the power is still valid and capable of use. 

The Legitimacy of the Notwithstanding Clause

For many people, such as myself, the notwithstanding clause ("NWC") is, on its face, not legitimate. Minority rights, people such as myself say, need protection from the sometimes intolerant majority - that is the entire point of providing for judicial review on the issue of legislative compliance with a Charter of Rights.  And it may be at times very popular with the majority in a province to infringe on the rights and freedoms of an unpopular minority. And the NWC provides just such a mechanism for a provincial government to make political use of such a situation. But the NWC exists and it does need to be given some respect and some meaning, as it was a key part of the constitutional settlement of 1981, and it is in the text of the Constitution Act, 1982. 

I would pause here to say that the very same sorts of things can be said of section 90, the federal disallowance power. It, too, exists and must be given some respect and some meaning - some role. We will come back to that idea. 

The notwithstanding clause has not been used by the federal parliament in the years since 1982. It has been used a number of times by provincial legislatures. A significant issue has arisen, recently expressly recognized by the federal government (see below ***) about how it is being used. 

The Problem of Preemptive Sterilization 

In 1980-81, the need for the NWC, the need for an over-ride, was usually framed as providing a way for legislatures to respond to "activist judges" who went off on a tangent. This strongly suggests that the corrective power provided by any NWC was to be used after such a unsupportable and bizarre judicial judgement. But that this not how it is being used. The NWC wording - that is, reference to all the Charter provision it might possibly affect - is being placed into legislation from the beginning. Thus it is being used to prevent judicial review, not to respond to it. 

Criticism on this point could go on for pages, but, for the sake of brevity, this preemptive use of the NWC presents at least two problems. 

First, the NWC covers a wide range of rights on very different areas. So using it preemptively to sterilize judicial review on a wide range of topics right from the start would allow for the gratuitous infringement of rights not connected to the purpose of the legislation at all. That is to say, used preemptively, it is an extremely blunt instrument that may well allow for more infringement than intended or even necessary. 

Secondly, by using the NWC before judicial review of legislation, and not afterwards, the provincial government is removing the ability of claimants to make arguments and submissions as to why the provincial legislation infringes on their Charter rights (at least those specific rights listed in section 33). It removes the need for the provincial government to bring forward facts and arguments that support why their legislation is justified, even in the context of some degree of infringement of Charter rights. And it removes the ability of the independent judiciary to evaluate those various arguments and provide a principled decision on the matter.  I hasten to add, the Courts may - and often do - agree with governments that infringements of Charter rights can be justified. 

The Benefits of the New Colangelo Convention - Section 33, Section 1, and Section 90 Working Together - No Preemptive Use of the NWC

Section 1 of the Constitution Act, 1982 provides for the process of adjudicating the justification of legislation that seemingly intrudes on protected Charter rights. It is in this arena where the great bulk of Charter litigation is decided. To my mind, the greatest downfall of the preemptive use of the NWC is that it short-circuits the section 1 justification argument. To be clear, governments win more of those argument than they lose in the context of section 1. 

So creating a new constitutional convention - that the provinces will not use the NWC preemptively and the federal government will not disallow any use of the NWC by a provincial legislature in response to a judicial declaration of invalidity of provincial legislation - would be a very good thing. The benefits of this approach are both significant and numerous:

-  section 1 of the Charter, section 33 of the Charter, and section 90 of the Constitution Act would all be given a role and recognition. They would work together, in balance and in harmony. This, in my view, would be a sterling example of cooperative federalism, true to the best and most progressive understandings of our constitutional architecture. 

-  the province might well win all of the arguments on section 1 justification and never need to use the NWC at all!

-  under the proposed convention, the provincial legislature does get the last word, which respects the fundamental nature of the 1981 agreement on the need for an over-ride power (not a sterilization power)

-  if the provincial legislature does need to use the NWC, it can use it extremely narrowly, to meet the precise and considered judgment of the courts. That is, of course, if those specific infringements are truly necessary to meet the important purpose of the legislation. In any event, the danger of accidental or incidental infringement on rights is completely removed.

-  the requirement for the province to publicly explain and defend the infringement of rights it is undertaking - the prime rationale advanced again and again in 1980-81 as to why the NWC would be used sparingly and why, therefore, it was a legitimate tool - would finally get its proper role. And also, I might add, it would get its proper profile when the precise infringements have to be defended in the legislature and in the public sphere by individual legislators as the supplementary legislation is advanced in response to a negative judicial decision. 

-  Indeed, the outcome might well be amendments to the provincial legislation to make it conform to the court judgment, rather than over-riding it, if that can be done (and this is commonplace) without impacting the central purpose of the legislation. In fact, I think this is the most likely outcome if provinces are required by this convention to undergo the initial review of their legislation on Charter grounds rather than rely on the NWC preemptively. How could this type of arrangement not be welcomed by all Canadians supporting the rule of law and the rights of individuals? 

-  complainants would, literally, get their day in court, but, as mentioned, the provincial legislatures will have the final word, after they have been forced to justify the infringement of protected rights. 

For all these reasons, I strongly support what Professor Colangelo has proposed. 

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*** From a CBC report dated May 25, 2022  https://www.cbc.ca/news/canada/montreal/bill-96-federal-response-justice-minister-legault-1.6465090

David Lametti weighed in on Quebec's new language law, Bill 96, which was adopted into law on Tuesday, and he said he would not rule out Ottawa taking part in a legal challenge against it.

"We will keep all options on the table," he said. "We won't eliminate the possibility of joining court challenges where we feel it is necessary to protect the constitutional rights of Canadians."

The sweeping new language law is large in scope.

It limits the use of English in the courts and public services and imposes tougher language requirements on small businesses and municipalities. It also caps the number of students who can attend English-language CEGEPs, which are junior colleges, and increases the number of French courses students at that level must take.

Lametti said he was concerned about the law's potential effects on immigrants, access to justice and health care in both French and English as well as Indigenous rights.

He also criticized Quebec's pre-emptive use of the notwithstanding clause which essentially protects Bill 96 from legal challenges based on the Canadian Charter of Rights and Freedoms. Quebec also used the notwithstanding clause for its controversial religious symbols law — also known as Bill 21.

"I recall those debates when the Constitution came into force and the notwithstanding clause was meant to be the last word," Lametti said when meeting reporters on Wednesday morning.

"It wasn't meant to be the first word." [bolding added]

Refining the Proposal to Use Section 90 Disallowance Power for Provincial Laws relying on Notwithstanding Clause

Regarding the Constitution of Canada. 

The purpose of this post is to endorse an idea regarding the use of the existing section 90, Constitution Act, 1867, federal authority to disallow provincial legislation that seeks to rely on the Notwithstanding Clause (section 33, Constitution Act, 1982; the "NWC") to protect provincial legislation from judicial review in regard to significant portions of the Charter of Rights and Freedoms (sections 1-34 of the Constitution Act, 1982; "the Charter"). My position previously (as one can see on prior posts to this blog) was to disallow any and all provincial use of NWC, period. While I thought - and continue to think - that such a proposal was entirely within a principled approach to the interpretation and development of the Canadian Constitution and Canadian federalism, this idea would be, to say the least, highly controversial and is not politically viable. So as much fun as I have been having saying this is the correct thing to do (and, actually, it is) it was a bit of pipe-dream. But maybe not so much anymore, given the variation on this approach recently expressed by Alex Colangelo, in a recent post on Twitter. Mr. Colangelo stated:

The federal government should announce that it will disallow any provincial legislation that preemptively invokes the Notwithstanding Clause. Forces provinces to justify the use of s. 33 in the face of a Supreme Court decision outlining how Charter are being infringed. [my italics]

I had to read Professor Colangelo's tweet two or three times to figure out what he was on about (to be clear: this is reflection on the word limits of Twitter, and not on Professor Colangelo). Now I see what he is getting at and he is making several very profound points. And, if followed, his approach would preserve the provincial use of the NWC, but subject it to much more judicial and, most importantly, public review. This is very much in line with how the NWC was rationalized in 1981 during the bargaining that led up to the 1982 patriation of the Canadian constitution. And, given that the provincial legislatures would have, eventually, the final say under this proposal, it can hardly be attacked on the grounds of federal over-reach. To understand why I say this it is necessary to talk a little bit about Charter litigation and, in particular, section 1 of the Charter, which states: 

1 The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society

As it has turned out in the last 30 years since the Charter went into effect, section 1 is the primary battleground for the process of judicial review of provincial (and federal) legislation on Charter compliance issues.  That is, it is usually fairly easy to find some sort of limitation on one or more of the many enumerated rights in the Charter (equality rights, mobility rights, etc. etc.) in most controversial legislation, and then the question boils down to this: is the legislation placing "reasonable limits" ... on the rights and freedoms of Canadians that "can be demonstratively justified in a free and democratic society," or is it failing that test?  

Once we get to section 1, the battleground in the courtroom is clear, the arguments go back and forth for all to see. From my point of view, the Supreme Court of Canada tends to favour the government position in regard to "demonstratively justified" far too often, to be, in other words, too deferential to parliament and the provincial legislatures. But at least - where the NWC is not invoked - the battle is there. The arguments are there. The data and research and so on is all there. And the government involved has been forced to justify any infringement on a Charter right. 

That is no small point. I think it is clear that the prospect of Charter litigation will significantly influence how provincial legislation is drafted, debated, and approved (or not). 

Now to get what Professor Colangelo is proposing. He says to use the federal section 90 disallowance power only when a provincial legislature uses the NWC "preemptively".  Just to pause here. There are in theory two ways to use the NWC power - preemptively, that is, to apply it to the legislation from the start, or, on the other hand, to use it after the fact: to use section 33 in a second piece to legislation ("supplementary") to declare and amend specific portions of the first Act so that they continue to have effect despite a judicial declaration that the specified portions of the legislation infringed certain charter rights and that those infringements could not be justified under section 1 of the Charter as a reasonable limitation. 

When the NWC is used preemptively - before any litigation is commenced - the courts of Canada will not carry out the Charter analysis, including the section 1 component when the legislation is challenged. (This was recently confirmed by the Quebec trial decision in the Hak case on Bill 21) To date, this is how provinces generally have used the NWC: using the full wording of the NWC and exempting review on a wide number of rights. Importantly, this might include removing rights that aren't even an impediment to attaining the goal of the purpose of the legislation. This is not how the political debate/negotiations in 1981 considered and defended the legitimacy of the NWC. 

This brings us nicely to the second key part of Professor Colangelo's proposal: the justification process (which was brought out again and again in 1981 as why the NWC would only be used sparingly; that is, that infringing protected rights would not be something any government would want to be seen doing). As I understand what Professor Colangelo is proposing, provincial legislation would be enacted without the inclusion of the NWC, but after the legislation had been through judicial review, and found to infringe in some way on one of the rights subject to the NWC over-ride, then the province could put to the legislature supplementary legislation that would be, one can only assume, tailored to meet the specific findings of the court about the specific rights that were infringed and the specific parts of the legislation doing the infringing. In the legislature, and in the broader public, the province would have to justify the actual infringement on rights. And, in this scheme of things, the federal government would not use the section 90 disallowance power on this supplementary and (hopefully) well tailored and proportional use of the NWC.

As the situation now exists, provinces face little or no need to justify the use of the NWC. They just use it as a blunt instrument early in the legislative process usually before there can be any well founded consideration of what rights are being infringed, whether there could be a better way to attain the legislative purpose that would eliminate or reduce the infringement of protected Charter rights, and so on. The provincial governments thereby avoid the great bulk of the actual issue.  If the NWC is used afterwards, after full judicial consideration and section 1 arguments (and, who knows, the province might have good section 1 arguments) then the specific rights and the specific impacts on individuals will have been identified, and the province would, in the debate on the supplemental legislation, have to actually justify why it is necessary to infringe the identified rights. If the NWC has to be used, then this is how it should be used: in a fully explored and carefully considered context, as a precise laser beam, not as a broad axe.

Also, the province might win the section 1 argument and not have to use the NWC at all. Or it might decide to simply amend the legislation so that it complies with what the courts have said. Both of these outcomes are highly preferable to simply preemptively using the NWC. 

Professor Colangelo's proposal should be given close consideration.