Serving Public Opinion Not Justice: Should We Care About Politicians’ Increasing Penchant For Section 33?

Section 33 of the Canadian Charter of Rights and Freedoms,¹ known as the notwithstanding clause, has come to the forefront of discussion over the past year. Although the federal government and the vast majority of provincial governments have never utilized s. 33,² Premiers Brad Wall in Saskatchewan³ and Doug Ford in Ontario⁴ have recently invoked or threatened to invoke it.

Section 33 creates an override that allows legislatures to enact laws that are exempt from certain sections of the Charter.⁵ It provides the ability to temporarily define the scope of certain Charter rights, and allows the legislature to override the freedoms of religion, expression, peaceful assembly, and association in s. 2, the legal rights in ss. 7-14, and the equality rights in s. 15.⁶

To better appreciate the instances in which s. 33 is employed, it is useful to review the two-step analysis courts engage in when government action is challenged on Charter grounds. First, courts consider whether the impugned legislation breaches a Charter right or freedom.⁷ Second, they consider whether the impugned legislation is a reasonable limit on the said right under s. 1 of the Charter.⁸ The Supreme Court of Canada established in R. v. Oakes⁹ that a limit is only reasonable if it is proportionate to a pressing and substantial legislative objective.¹⁰ Courts determine proportionality based on a three-pronged test: (1) whether there is a rational connection between the legislative objective and the means employed; (2) whether there is minimal impairment of the Charter right or freedom; and (3) whether the social benefits of the limit on the right or freedom outweigh the costs to the individual.¹¹

Legislatures may turn to s. 33 to justify Charter breaches that are not proportionate to a pressing and substantial legislative objective. One may argue that such use of s. 33 is not problematic since a dissatisfied population can simply elect different politicians who will not resort to it. Although appealing for its simplicity, this argument overlooks the important role the judiciary plays in protecting the rights of minorities from the will of the majority—a role that politicians are often unwilling or unable to carry out. Justice Abella has aptly noted the following:

The judiciary has a different relationship with the public. It is accountable less to the public’s opinions and more to the public interest. It discharges that accountability by being principled, independent, and impartial. Of all the public institutions responsible for delivering justice, the judiciary is the only one for whom justice is the exclusive mandate. This means that while legislatures respond of necessity of the urgings of the public, however we define it, judges, on the other hand, serve only justice.¹²

Many of the civil rights now cherished by Canadians emanated from the judiciary’s focus on the public interest as opposed to public opinion. For example, the judiciary played a key role in guaranteeing women the right to access safe and timely abortion services,¹³ extending civil marriage to same-sex couples,¹⁴ and protecting the right to express controversial views in the face of societal opposition.¹⁵

The role of the judiciary as a guardian of unpopular rights gives credence to the argument that s. 33 was intended to be invoked only in truly exceptional instances. Much of the jurisprudence over the past three decades support this view. However, recent developments have revealed an increasing willingness by politicians to employ s. 33 to bypass the Charter.¹⁶ Two recent judicial decisions play a significant role in these developments.

In 2017, the Saskatchewan Court of Queen’s Bench ruled in Good Spirit School Division No. 204 v. Christ the Teacher Roman Catholic Separate School Division No. 212 and the Government of Saskatchewan¹⁷ that funding of non-Catholic students in Catholic schools violated ss. 2(a) and 15(1) of the Charter and could not be justified under s. 1.¹⁸ Given the relatively high proportion of non-Catholic students attending Catholic schools,¹⁹ the loss of such funding would have a significant impact on the financial viability of the Catholic school system. Acting Premier Brad Wall’s response was to introduce Bill No. 89 which employed s. 33 to bypass the funding restrictions.²⁰

At the same time that Bill No. 89²¹ was introduced, Saskatchewan Party leadership candidate Rob Clarke stated that he “[does not] believe in abortion,” and proposed restricting the provision of abortion services in the province.²² When questioned about the constitutionality of such restrictions, Clarke proposed employing s. 33 to circumvent the Charter.²³

The recent temptation of s. 33 as a means for governments to bypass Charter rights has not been limited to Saskatchewan. In City of Toronto et al v. Ontario (Attorney General),²⁴ the Ontario Superior Court of Justice (“OSCJ”) held that legislation reducing the number of city council seats during an election breached candidates’ and voters’ right to freedom of expression as guaranteed under s. 2(b) of the Charter and could not be saved under s. 1.²⁵ Although the Ontario Court of Appeal later stayed the decision,²⁶ Premier Doug Ford initially responded to the OSCJ’s decision by stating that “[the government’s] first order of business [would] be to reintroduce the Better Local Government Act, and with it invoke Section 33 of the Constitution.”²⁷ Ford further added that he would be willing to employ s. 33 in future cases.²⁸

The events over the past year appear to signal a shift in political attitudes in favour of greater use of s. 33. This is a worrisome development. While s. 33 can serve the important role of correcting judicial errors,²⁹ employing it frequently defeats the very purpose of the Charter, as governments place civil rights and freedoms precisely where they were prior to its enactment: at the mercy of a potentially intolerant majority.

Section 33 of the Charter, known as the notwithstanding clause, has come to the forefront of discussion over the past year. Although the federal government and the vast majority of provincial governments have never utilized s. 33, Premiers in Saskatchewan and Ontario have recently invoked it or threatened to invoke it. This increasing willingness to resort to s. 33 should be a cause for concern as it places what are, at times, unpopular civil rights and freedoms at the mercy of a potentially intolerant majority.

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^* JD Candidate (Saskatchewan), MA Economics (Regina).

¹ Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

² Ken Norman, “The History of the Notwithstanding Clause” (11 February 2018), online: The Conversation <https://theconversation.com/the-history-of-the-notwithstanding-clause-90508>, archived: <https://perma.cc/XZ6K-CDRR>.

³ Bill 89, An Act to amend The Education Act, 1995, 2nd Sess, 28th Leg, Saskatchewan, 2018 (assented to 30 May 2018), SS 2018, c 39.

⁴ Mark Gollom, “Doug Ford's use of notwithstanding clause sparks fears it will embolden others to invoke it” (12 September 2018), online: CBC <https://www.cbc.ca/news/canada/toronto/doug-ford-notwithstanding-clause-charter-city-council-1.4818668>, archived: <https://perma.cc/8KVP-NSFE> [Gollom].

⁵ Supra note 1, s 33.

⁶ Ibid. Note that legislatures cannot override democratic rights (ss. 3-5), mobility rights (s. 6), language rights (ss. 16-23), gender equality rights (s. 28), and Aboriginal rights (s. 35) (ibid).

⁷ R v Oakes, [1986] 1 SCR 103 at 135, 1986 CanLII 46.

⁸ Ibid at 136.

⁹ Supra note 7.

¹⁰ Ibid at 138-139.

¹¹ Ibid at 139.

¹² Rosalie Silberman Abella, “The Judicial Role in a Democratic State” (Keynote Address at the 1999 Constitutional Cases Conference, Osgoode Hall Law School, York University, 7 April 2000), online: Court of Appeal of Ontario <http://www.ontariocourts.ca/coa/en/ps/speeches/judicialrole.htm>, archived: <https://perma.cc/78A7-6E4K>.

¹³ R v Morgentaler, [1988] 1 SCR 30, 1988 CanLII 90.

¹⁴ Reference re Same-Sex Marriage, 2004 SCC 79, [2004] 3 SCR 698.

¹⁵ Whatcott v Saskatchewan Human Rights Tribunal, 2013 SCC 11, [2013] 1 SCR 467.

¹⁶ Gollom, supra note 4.

¹⁷ 2017 SKQB 109, [2017] 9 WWR 673.

¹⁸ Ibid at para 475.

¹⁹ Ibid at paras 2, 19, 21.

²⁰ Supra note 3.

²¹ Ibid.

²² Arthur White-Crummey, “Abortion Becomes a Divisive Issue in Sask. Party Leadership Campaign” (23 November 2017), online: Regina Leader Post <https://leaderpost.com/news/local-news/abortion-becomes-a-divisive-issue-in-sask-party-leadership-campaign>, archived: <https://perma.cc/U9FW-DM36>.

²³ Ibid.

²⁴ 2018 ONSC 5151.

²⁵ Ibid at para 83.

²⁶ Toronto (City) v Ontario (Attorney General), 2018 ONCA 761 at para 23.

²⁷ Andrew Russell, “Ontario Premier Doug Ford plans to invoke notwithstanding clause. Here’s what you need to know” (10 September 2018), online: Global News <https://globalnews.ca/news/4438198/notwithstanding-clause-doug-ford-bill-5-toronto-city-council/>, archived: <https://perma.cc/5W7H-V8UX>.

²⁸ Ibid.

²⁹ One need only look at Edwards v. Canada (Attorney General), [1928] SCR 276, rev’d [1930] 1 DLR 98, where women were not “persons,” to see that courts are far from infallible.