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.