It isn’t happening in Quebec, but in Ontario, so there will be more of a fuss than would otherwise be the case.
But there will be less of a fuss than the last time the Doug Ford government threatened to use the notwithstanding clause to override constitutionally guaranteed rights. The next time it happens, there will be less still. And there will be a next time, and a next time after that, and another, and another – precisely because the political costs of doing so diminish with each use.
This is how the clause is being normalized. This is how, in consequence, the Charter of Rights is being eviscerated. It is already more or less a dead letter in Quebec, where the override has been invoked over the years by governments of every party. Once upon a time it might have caused something of a stir, at least outside the province, as when Robert Bourassa used it to uphold the ban on English-language signs in 1988.
But having paid no discernible price for invoking the clause to protect Bill 21, legislation that effectively bars the hiring of religious minorities across much of the public service, Quebec’s CAQ government was quick to do the same with regard to Bill 96, its new and harsher language law. A rights “guarantee” that cannot protect minorities from overt harassment and discrimination – a guarantee that applies only as when the government of the day decides it should – is not much of a guarantee at all.
And now it is happening elsewhere. Mr. Ford’s first attempt to use the clause, over a 2018 bill that would have cut the size of Toronto city council in half – in the middle of a municipal election – may have collapsed in confusion, but now the Premier is back for another try. This time the casus belli is Bill 254, legislation passed earlier this year that would, among other things, double the length of time before an election campaign during which third-party advocacy groups would be subject to spending limits.
As before, the Premier has supposedly been provoked to action by a judge’s ruling, overturning the legislation on Charter grounds. But as before this is not really the issue. The government could have appealed either ruling to a higher court, and even had it lost there, it could have rewritten either bill in ways that addressed its purported intent, without unduly limiting Charter rights.
That word “unduly” is key. Charter rights are already self-limited under Section 1, the “reasonable limits” clause. Courts do not rule, ever, on the purpose of a piece of legislation. They only inquire whether its purpose might be achieved in less draconian ways. They do not generally pronounce on the whole of a bill in this light, but rather particular parts. And far from the constitutional purists of caricature, courts are often at pains to grant governments wiggle room.
It is permissible, that is, for a law to violate Charter rights: It just has to be “reasonable” about it. What’s reasonable, as the courts have defined it? Common sense: The impugned provisions must be “rationally connected” to some “pressing and substantial” purpose; they must impair rights to the minimum extent necessary, and in proportion to the good achieved. Any bill that can’t pass that forgiving test has to be pretty bad.
If Section 1 is the “reasonable limits” clause, notwithstanding might be defined as the “unreasonable limits” clause. No such careful weighing of costs and benefits is required: rather, governments may invoke it for any reason. Defenders of the clause claim it is needed to prevent the courts from having the “last word” on legislation: appointed judges, they remind us, should not be set above elected legislatures.
But the Charter does not give the last word to the courts: governments can and do redraft legislation all the time. Judicial review is merely a stage in the process. The point is not that the courts are superior to government, but that they are other than government: an independent examiner, responsible for ensuring the laws are consistent with the higher law embodied in the Constitution. In effect, their job is to hold governments to their promises. To do otherwise would amount to letting governments vouch for their own credit.
Anyway, if judicial review were really what this was all about, we’re about 154 years too late. Canada has had a written Constitution, subject to judicial interpretation, since its founding. Courts were “making law” just as surely before the Charter as after: only where before the courts were confined to deciding whether one level of government had encroached upon the powers of another, now they are also called upon to draw the line between government and citizen.
Do courts sometimes get it wrong? Of course. So, you might have noticed, do governments. Which would suggest not handing them the sort of unrestricted power the notwithstanding clause represents. The rogue-court scenarios invoked in its defence bear no resemblance to the circumstances in which it has actually been deployed: whether beating up on unpopular minorities, as in Quebec, or excusing arbitrary executive acts, Ford-style, its practitioners have shown precious little concern for preserving parliamentary democracy, as opposed to enlarging government power.
When the clause was first adopted, advocates assured us it would only be used sparingly, in the most extreme cases, as a kind of emergency safety-valve. Some even praised it as a pro-Charter measure, claiming it would “implicate” governments in court decisions. Forty years on, these arguments can no longer be sustained. We can have a working Charter of Rights. Or we can have a notwithstanding clause. We cannot have both.
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Andrew Coyne