Title: Between Hak and UR Pride Centre: What the Normalization of the Notwithstanding Clause Might Mean for Democracy
Date: Monday, February 3, 2025
Description: Two cases from different provinces, Quebec and Saskatchewan, have reached opposite conclusions on the court’s jurisdiction to entertain judicial review once the notwithstanding clause has been invoked. In Hak v. Québec, the court’s jurisdiction is found to be ousted following invocation of the clause. In UR Pride Centre, the court determines that it may still pronounce on the rights infringement, though it cannot strike down the protected law.
With the use of the notwithstanding clause now effectively normalized and the question of the court’s jurisdiction uncertain, does democracy align more with one side or the other?
Speakers:
- Peter L. Biro, Founder, Section 1; Senior Fellow, Massey College; Adjunct Professor, University of Toronto Law School (GPLLM Program)
- Discussant - Grégoire Webber, Professor of Law and Philosophy, Queen's Law
- Discussant - Jacob Weinrib, Associate Professor, Queen's Law
- Discussant - Debra M Haak, Assistant Professor, Queen's Law
Podcast:
Transcript:
[Auto-generated transcript. Edits may have been applied for clarity.]
For the first time in 40 years. The notwithstanding clause of the Canadian Charter of Rights and Freedoms is heading to the Supreme Court of Canada.
When it arrives. It will be only the second time that the scope and meaning of the Charter's 33rd section will be squarely before the court.
The first time reported in the case of Ford v Quebec was heard in the closing months of 18, 1987, by a seven member panel.
The case was decided 13 months later, on December 15th, 1988, by unanimous decision of five judges,
two of the seven judges having retired between the hearing and the judgement.
Chief Justice Dixon and Justices Betts, McIntyre and Wilson devoted 14 paragraphs to interpreting the clause in the light of a
challenge to its use by the Quebec legislature in An Act Respecting the Constitution Act,
1982. That act and the Quebec Legislature amended every provincial statute then in force
by adding a declaration in the form prescribed by the notwithstanding clause,
the effect of which was to extend to the totality of the statute book in Quebec, the full protection offered by the notwithstanding clause.
In affirming that the Quebec legislature could lawfully do as it did.
The five Supreme Court justices famously famously ruled section 33 lays down requirements of form only,
and there is no warrant for importing into it grounds for substantive review of the legislative policy.
In exercising the override authority. That finding many now say was wrong in law.
It was wrong then, and it is all the more wrong now.
When situated in light of the evolution of the court's own constitutional jurisprudence.
After all, 1988 was a long time ago.
In 1988, the Prime Minister of Canada was Brian Mulrooney.
The US president was Ronald Reagan. George Michael and Guns and Roses were top of the music charts.
And no member of this panel was yet born on one of those four propositions is a lie.
I'll leave it to you to guess which one was the lie. But even if we do not want to insist that the court decision is outdated,
it remains that no one constitutional precedent purports to ask and answer every
question that could be raised with respect to a given constitutional provision.
Many provisions of our charter have their lead. Leading precedent.
And many of these precedents continue today to stand for the propositions settled them long ago.
But Irwin Toy decided the year after Ford did not settle the whole of our understanding of freedom of expression.
Big M Drug Mart, decided three years prior to Ford, was not the last word on freedom of religion,
and the motor vehicle reference decided some years prior to Ford, did not definitively fix the principles of fundamental justice.
Why then, suppose that the case of Ford said all that is to be said about the notwithstanding clause.
We are now confronting a great many new arguments about the proper reading of the clause.
Many of those arguments are being formulated in the context of the case now before the Supreme Court,
which mounts a challenge to Québec's Bill 21 on the lazy day of the state.
The Quebec legislature invoked the notwithstanding clause when the bill was adopted in 2019,
and has since renewed that invocation within the mandated five year sunset period.
Many of those same new arguments are being formulated in the context of the case now before the Saskatchewan Court of Appeal,
which mounts a challenge to the province's amendments to the Education Act that require parental or guardian consent
for students under the age of 16th May be recognised by their school with a gender and name with which they identify.
The Saskatchewan Legislature has invoked the notwithstanding clause.
To explore many of these arguments. We are assembled virtually and here in person on the land of the Shawnee Confederacy, an Anishinaabe nation.
As we explore together the significance of the Charter's notwithstanding clause for the protection of rights in Canada,
we should all hold in view the significance of our living on land,
not our own, and about land significance for the indigenous people whose land it is, and of their practices and spiritual relationship to the land.
I've been speaking without introducing myself. My name is Greg Weber and I am professor of Law and philosophy here at Queen's.
I am joined and will learn much from my fellow panellists, and I introduce them to you in the order in which they will speak.
Peter Bureau is founder and president of the charity section one.
Named after our charter's first section and its commitment to a free and democratic society.
The organisation is devoted to elucidating and promoting the fundamentals of a liberal constitutional democracy.
Through that organisation and in Peter's own name.
Peter has made a permanent contribution to debates around the notwithstanding clause with the publication of a collection of essays.
Copies of which are on this table here entitled The Notwithstanding Clause and the Canadian Charter.
Rights reforms and controversies. The book testifies to Peter's commitment to liberal democracy.
I say this because, despite Peter's own settled views on the notwithstanding clause, he sought out and secured views contrary to his own.
And in chairing the conference that preceded the publication of the book,
Peter modelled for all the norms of civility and generosity in the debate of ideas.
It is a testament to his commitment to liberal democracy that anyone picking up the book will find much to disagree with.
No matter your views on the notwithstanding clause, the book will provide you with an opportunity to revisit those views.
Our next two panellists are Deborah Hack, assistant professor of law, and Jacob One Rib, associate professor of law.
And as they're well known to us all here at Queen's Law.
I hope they will forgive me if I say only that I'm lucky to count them as colleagues and to learn from them on a daily basis.
We will not proceed to hear from our panel, each of which will speak for approximately ten minutes, after which we will hear from you.
As I moderate the question and answer period without more, please join me in welcoming Peter.
Thanks so very much. Well, civility is officially now out of fashion.
Uh, now that we are living just north of the latest, um, electoral autocracy to, uh,
take hold in the world as democratic backsliding continues to infect the world with,
uh, contempt for liberal democratic values, uh, and a reflection of the darker side of human nature, uh, writ large.
And we Canadians are now dealing with that. I think it's actually a very good time for us to be talking about the notwithstanding clause.
We're talking about issues that are, you know, will seem rather rarefied in comparison to the kind of rough, um, uh, and, and, uh,
and clumsy fashion with which issues such as rights and interests and proportionality and justification for infringements,
uh, will now be dealt with just south of the border.
These conversations will not be taking place in polite circles, in enlightened circles down there.
They're going to be talking about how to rescue their democracy from the clutches of an autocrat.
Um, now that the January 6th. Um.
Insurrection has finally succeeded and the coup has been completed.
Up here, we still, uh, have the luxury of considering ourselves a liberal democracy.
And that's what I want to talk about today. Really? I want to ask the question, what does accountability look like?
Or what does it require in a liberal constitutional democracy and more specifically, in the context of this discussion?
What sort of accountability is possible when the formal requirements of section 33, the notwithstanding clause, have actually been met?
The question isn't whether the integrity and legitimacy of liberal democracy are undermined
when the state restricts or infringes constitutionally protected rights and freedoms.
It is rather, what sort of accountability for state imposed rights infringements is sufficient to satisfy the minimum requirements of justice.
And this is really the issue that will ultimately be the court will be grappling with in the, uh, at the Supremes.
I call them the Supremes, um, a throwback to a different Supremes.
Um, in the HAC decision. And ultimately, I believe when you are, pride for sexuality and gender diversity makes its way up, uh, as well.
That's the question they'll be grappling with, but they won't be looking at it.
Probably in that formulation, they won't be asking, you know,
what kind of accountability is necessary when the state infringes rights in a liberal democracy?
It'll be more like this. Where is it?
In my. What? What sort of, um.
Sorry. Does formally compliant.
Invocation of the notwithstanding clause. House the jurisdiction of the court to undertake judicial review.
That's really the way it's likely to be formulated.
And the courts in hack and in You. Our pride answered that question in opposite ways.
Now you are. Pride is Making its way was heard by the Saskatchewan Court of Appeal.
They haven't rendered their decision yet, and they haven't. Um, and it will ultimately go up to the Supreme Court.
But that's fundamentally the formulation of what I think is really the same question.
Once there has been compliance with the formal requirements that Gregoire mentioned earlier when he was talking about the Ford decision.
What's the court's role and what is the court permitted to do?
And what are you as a citizen, a potentially aggrieved citizen able to do?
Once there has been formal compliance with.
The requirements of section 33. And of course, what is the effect of that invocation?
So formally compliant. Now two of our three panellists here have in my judgement anyway, answered this question.
It's always a really dangerous thing and probably ill advised to tell a roomful
of very bright people what two other people who are sitting right here think,
uh, for risk of just looking very silly and getting it wrong.
But I will take that risk and we'll happily be corrected by them.
I think the two of them have answered this question. In a different way, but with the same result.
The first formulation, the accountability question is more in the kind of Weinrib universe of sort of jurisprudence.
And the second one, the formulation of what kind of judicial review might be left for the court once there's been formal compliance,
is very much in Gregoire Webber's. Um. Bailiwick, and he has answered that question in my judgement in a few places.
Uh, and not the least of which is in a brilliant chapter in the book that you can buy at the back of the, uh, of the room.
Webber's argument, and you'll forgive me if I tried it.
This isn't even an encapsulation of it. It's just a summary of the conclusion.
Approaches the matter from the standpoint of the text and the architecture of the Constitution, with a principal focus on the Supremacy Clause 52 one.
The notwithstanding clause.
Their relationship and of course, their relationship with the individual rights provisions for the purpose of explaining the operation.
Of the impugned or protected law in question,
with some guidance derived from consideration of the Colonial law's validity act on the Operation of legislation.
And as I read. Weber.
He concludes that section 33 operates as an exception to the Supremacy Clause, to the necessary, not to the clause,
but to the effect of the Supremacy Clause in circumstances where there is an inconsistency between a law.
And a rights provision or freedoms provision in the charter.
Specifically, we're talking about sections two and 7 to 15 of the charter, an exception.
That's that's extremely important.
And I think that Greg was probably going to expand on that and explain what that means and why that might be significant, what it means.
In. My sort of understanding is that when there is an inconsistency between a rights provision and a.
Provision in a statute. That inconsistency doesn't disappear.
It is a thing. It never goes away.
It's not rendered consistent, but by way of invocation of the other, of the notwithstanding clause, it remains an inconsistency.
However, the normal effect, or the normal result of that inconsistency that would flow from from 50 to 1.
That the law would be of no force in effect, and that a court would then strike it down.
That doesn't apply. That's suspended. But that's the only effect.
The other thing that flows from Greg Wise argument is that the notwithstanding clause, even when it's invoked,
doesn't become particularly relevant to anything in the world and is not effective until such time as there's actually been a ruling by a court.
And this is risky. And me saying this, I hope I'm not getting you wrong on this, but that's how I read you.
That's certainly how I read the law. Um, until a court has actually declared.
An inconsistency.
If a court has not spoken on the inconsistency between the law or the provision of the law and the charter, the invocation is is meaningless.
Meaningless. And that's very important for the argument that I want us to consider today.
But is this just a matter of textual analysis and legislative operation,
or is there also a principled, philosophical, indeed moral basis for the same conclusion that if.
The invocation only operates as an exception to the.
52 one effect, but operates but has no other effect and therefore a court is still entitled.
To consider. The effect of an infringing law.
On rights. And look beyond that, possibly grant remedies under section 24.
Is this only a matter of textual analysis? Is there a moral basis?
And I think there is one. And I think Jacob Wein ripped off for such a basis, grounded in an understanding of the concept of human dignity.
Human dignity as a justiciable constraint on the exercise of public authority.
And he's written a book that every one of you must read. It's called Dimensions of Dignity.
It was one of the most important books I've read in the last few years.
Um, and. Get it and read it.
Um, and I'm going to read for you just a few lines to help to sort of frame the argument.
Human dignity, he says, is the legitimating basis of public authority.
So human dignity forms a justiciable constraint on the exercise of public authority.
The theory of human dignity must be understood in terms of the right of each person to equal freedom.
That's a very complex idea. He's referring to the freedom to determine one's own purposes.
All right. And any exercise of public authority has to be justified in terms of its fidelity to the equal right of each person to freedom.
All right. And he keeps talking about individual rights of individual persons, of discrete individual citizens.
Right.
Once the right of government to rule is understood to be accompanied by a duty of just governance owed to each person, subject to laws, authority.
The problem of accountability materialises, and this is what's critical.
So it's not a question of, you know, a world in which governments don't infringe.
Governments infringe rights all the time. People break their contracts all the time.
People hurt each other all the time. That is not.
The litmus test of whether you're living in a just society,
and certainly not the litmus test of whether you're living in a liberal democratic society.
The test is whether there is appropriate accountability, and I use the term sufficient accountability in this particular case.
When we come to Webber's reading of the notwithstanding clause and what I assume is winery's reading of the notwithstanding clause as well,
on this question of the disagreement between the two courts on the jurisdiction of the court.
What does accountability actually mean? A legal system is accountable, says one rep.
If it creates the conditions under which the inherent dignity of the human person
forms that justice justiciable constraint on the exercise of public authority.
All right. It's not.
It's not a system that is, uh, you know, devoid of public and justice, but one in which these injustices are themselves justiciable.
That's the key. Okay. So we we get into an interesting discussion about what accountability looks like.
And that leads in wine ribs analysis to a discussion of proportionality and justification.
What sort of passes for acceptable justification in a free and democratic society.
And I gather, although I haven't read all of the correspondence between the two of you and all the published pieces,
that there may be some interesting discussion that you and he have over this matter of proportionality.
Right. But, um, and I look forward to kind of following up on that at some point.
But what I do want to focus your attention on is this problem of accountability and this
first moment of accountability in the context of the discussion we're having today is,
of course, the moment when a right itself gets recognised.
The moment when the infringement of the right gets recognised, and then the moment when justification for the infringement takes place.
All right.
And we know as students of law that section one, often called the reasonable limits clause, I refer to section one is the liberal democracy clause.
And I have my sort of reasons for that. That's the place where that justification exercise takes place.
All right. And, um, we can talk in terms of proportionality.
I just don't have time to do it here. But there is a very, very interesting sort of set of statements that Weiner makes about proportionality.
Uh, that's, uh, I'll just read you one little point, because it's it's worth.
It's worth, uh. Are taking note of it.
The meaning of a constitutional right indicates what it would mean to justify its infringement,
because constitutional rights are specifications of human dignity.
Their infringement is justified when consonant with the overarching duty duty of which the right is an instance.
So each right is an instance. Okay.
Of. Human dignity.
It is in itself a specification of human dignity and proportionality, says one.
It consists in the set of justification, three conditions that government must satisfy to establish that an infringement coheres to this duty.
Now we don't have time to talk about that anymore. I wish we did.
There's a lot to discuss there. We're talking about section 33, which I haven't really begun to talk about.
As we know, the protection of a rights infringing law by way of section 33,
an invocation is not contingent on the government satisfying this proportionality test.
It does not depend on any sort of justification.
As set out in section one, or as discussed in various texts, about what kind of justification passes in a liberal democracy.
All right. So if there is no justification exercise at all.
What kind of accountability does that leave us with?
What kind of accountability is possible in circumstances where the formal requirements of section 33 are met?
And I think you already know what I think the answer is that accountability, obviously.
Occurs. All right. Takes place in that judicial review that is left to the courts, that is open to the courts.
Even even though they are no longer able, they no longer have jurisdiction to strike down a law under section 52 one.
So that's the only thing the courts can't do.
But they can do everything else. They can entertain an application.
They can be there for a sit for an aggrieved citizen or group of citizens.
Who want to complain that a government has transgressed the Constitution in some way, as injured them in some way.
They can take cognisance of the injury. They can acknowledge the right.
They can make declarations. If they can't, and if the Court of Appeal in hack is correct, then we have a serious problem.
And then we're talking about a constitution, a constitution itself, that doesn't satisfy the bare minimum conditions of liberal constitutionalism.
That's just sort of my view. Now, defenders of the notwithstanding clause.
All right. And there's some brilliant ones and some of them are in that book.
Particularly those whose position on the ousting of the court's jurisdiction.
Uh. But you know, resulting from formally compliant invocation side with Hawke,
side with people like Ian Russo who who was instrumental in the drafting of Bill 21
last year at Lake City and in advising the attorney general of Quebec in the hat case,
uh, and others like Dwight Neumann, who advance a powerful and compelling defence of the notwithstanding clause.
They say, Peter, you're wrong. There is accountability here, and that accountability occurs in the political.
Form in the legislature. There's legislative debate, there's deliberation, and there's a five year sunset clause.
And so when the five year sunset clause expires, in the end, the legislature wants to continue the law.
The effect of the law they have to re-enact, and if they're going to re-enact, that means there's deliberation.
And so there's political legitimacy, right?
There's political legitimacy. And, you know, to that, um, I think that that position and, and and they, they make another argument.
They make another argument, which is that, you know, Webber at one, uh, it's a winery.
But one point in his book says that, you know, courts are uniquely suited to be the assessors of,
of, you know, rights and of complaints that rights have been infringed.
And, and, you know, the analysis that flows from that and the and the and the relief that might be granted as a result of that.
People like Dwight Newman say, no, no, no.
It's true that courts are suited to do that, but they're not uniquely suited to do it.
Legislatures also have a role to play. When we talk about what is a right and when can we infringer right, and how do we define a right,
and what is the category of rights that we care about in the world?
And they talk about something called coordinate interpretation of rights, giving the legislatures a role to play in that process as well.
So my my view is this. The position that there is political accountability.
And therefore that should suffice for in terms of the accountability requirement that we're talking about.
Um, and. Suffers from two shortcomings, at least.
One is that there's no guarantee that the law will cease to operate in the event of a five year sunset.
Remember I said that on Webber's analysis?
The notwithstanding clause has no effect unless there's been an actual judicial pronouncement on on the right.
If there's been no judicial pronouncement, the law just continues to operate its enactment of the law and promulgation of
the law in the ordinary course that allows that law to continue to operate.
And if we don't have the benefit of judicial review in the interim,
whether or not that invocation occurred pre-emptively, it's almost irrelevant whether it was pre-emptive or not.
That is, whether it's been invoked before parties have gone to court and got a ruling from the court on, on on rights violations.
If. If a court hasn't ruled because the court's jurisdiction is ousted by virtue of the invocation.
There's no accountability whatsoever. None. And we don't know for a fact whether there's even been a rights infringement.
Which is critically important. Okay. And the effect of a law.
Sorry, I know I'm gone way too far. I was not meant to.
Yeah. Let me. I'll just take another couple of minutes here and I'll be done.
So the what's what's critical there is that, you know, for unless a court is actually granted declaratory relief,
the law doesn't automatically become unconstitutional upon the expiry of that period,
because there's never even been a ruling that it was unconstitutional in the first place.
The idea that we preserve the law is the right, simply because a legislature has invoked the notwithstanding clause is is not particularly helpful.
And it's not necessarily true. But the more important chalking and I'll close with this, that I think you know that argument.
Suffers from is that without judicial review.
There's no accountability for the aggrieved individual.
The political accountability argument, the democracy argument, the legislative exercise of sort of, you know, expression of the,
of the of the general will through the legislature doesn't help, doesn't assist the individual aggrieved person at all.
There is no accountability to that individual whose rights have been infringed and who has been harmed by it.
If their argument is correct. Right.
Otherwise stated a constitutional state of affairs in which an aggrieved person is deprived of legal recourse in the event of a rights violation,
is one that offends human dignity in general, and the inherent dignity of the aggrieved person in particular.
Uh, so, you know, it amounts to a kind of public authority bereft of the legitimacy.
That is necessary for this to be a liberal constitutional democracy.
And I used the term sufficient versus, you know, I talked about sufficient accountability, sort of the analogy that we lawyers.
You know, an analogy with what we lawyers refer to as sufficient consideration in contract versus adequate consideration in contract.
Right. I, uh, I'm not suggesting for one moment that, uh, that that my view is,
is a happy sort of state of affairs, uh, because I don't think that simply allowing, uh.
Allowing courts to rule on infringements without being able to strike down the law.
Is is a good enough situation, but it's minimally sufficient, all right, to provide the kind of accountability.
And I think both of these gentlemen, uh. I think called for on, you know, on different arguments.
Anyway, I'll stop with that. And I apologise for running over my time.
You know. Thank you.
And, uh, no worries. You can take my time if you'd like as well, because you are animated and on the topic.
And that has clearly been what lay behind the creation of this volume, which I think is a fantastic contribution.
And I thank you for, um, thank you for giving me the opportunity to be part of this panel.
I'm a little bit of an outlier. I'm not a section 33 scholar and haven't spent a significant amount of time thinking directly about section 33.
Um, but I'm hoping that I can offer some reflections, some of which will echo things that Peter said, uh, a little bit earlier.
Um, I see a lot of my wonderful students in the room,
so I just want to do a little bit of backtracking and starting the story a little bit earlier on.
So we have a charter. Rights and rights in Canada are not absolute, and there are limits on rights placed in section one and in section 33.
Uh, section 33 is our focus today. Why do we have section 33?
It was a political compromise about which much has been written.
Um, and what it says is that 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 two or sections 7 to 15 of the charter.
So what that means is that some of the rights in the charter can be.
Overcome or overridden by an invocation of section 33 of the charter.
And there was a lot of controversy at the time about whether section 33 should be included in the charter.
And it was it was a political compromise.
And it is what it is, as they say, it is increasingly being invoked, uh,
including pre-emptively in ways that many suggest was not what the framers had in mind when they agreed to have this section in the charter.
And so that has led, in many cases, to significant recent opposition in the public sphere, as well to the use of section 33.
And one of the things my students will know, I often say,
is that we have to reflect on whether the outcome that the law takes us to is
influencing or colouring our view of whether we should have a particular law in place.
And that reflective exercise is important.
I think the uses to which section 33 is currently being put are ones that that most people find uncomfortable and unpalatable, and so.
That has led some of this obliteration. It's.
My apologies. Step away and shake.
Right. I have some.
Hey. I think that Peter is right, that one of the big issues.
The big issue, arguably right now is whether or not, in the face of an implication of section 33,
courts should nonetheless be allowed to give an opinion on the constitutionality of the legislation.
And many argue they shouldn't. I tend to agree with Gregoire that they should.
And for the reasons that he will explain. But I am at core a pragmatist.
And so what? I want to use the rest of my ten minutes to talk a little bit about.
Is what the invocation of section 33 illuminates.
And why it's important. So I'd like to think of the section 33 as a flashlight that illuminates certain things that I think are important for us.
So first, what is or might be illuminated.
Hmm. Is the possibility that this law is rights infringing.
And I echo there something that Peter said.
So what's illuminated when the government turns on the flashlight of section 33 is that there's something in here that is possibly rights infringing.
And why does that matter? Well, it matters for at least two reasons.
One, it allows the electorate to respond.
So arguably, this accountability function allows the electorate to say, we're not going to keep in power a government that violates our rights.
Of course, the response to that is sometimes that when it's minority rights that are being infringed,
that that function, that accountability function is not going to work effectively.
And that is another separate question that we could spend a great deal of time on.
But the other thing that this illumination of the possibility of a rights infringement
does is hopefully give the courts an opportunity to opine on constitutionality,
and perhaps earlier than they might otherwise have done, because once the flashlight is turned on,
those who have an interest in the possible rights violation are alerted to it.
Okay. What else gets illuminated?
Like many of you, I spent this past weekend both voraciously consuming the news and working very hard to avoid it.
And in the current global climate, and notably, what's happening south of the border.
What is also illuminated that I think is important is the recognition of a right.
Pre-emptive use of section 33, in particular, involves the government shining a light on the existence of a right.
By saying this law may violate a right.
They are also saying we acknowledge the existence of a right that is, albeit modest itself, an internal check on power.
It is a nod to the existence, to the rule of law.
It is a recognition that the democratic state exists and some of that is quickly being lost, including south of the border.
And so we ought not to undervalue what section 33 affords, which is that recognition that a right exists and a government acknowledging that.
Finally, um, what is illuminated is that those who have been democratically elected perceive that they have a justification for violating a right.
So why is that important? Well, I said it was in a section 33 scholar.
Now is where I'll admit, I'm a section seven scholar. And I'm interested in the intersection of section seven and section one.
And I could go on at great length about this, but at its highest level,
the government believes they have a justification for violating a right and where
they believe they have a justification for violating a section seven right,
they're not going to be able to demonstrably justify that under section one, because section one doesn't work right now.
In section seven cases,
the Supreme Court of Canada has never found that a law that violates section seven is demonstrably justified under section one.
There are some reasons for that. Early jurisprudence, unfortunately, where it was suggested that it have limited use in seven cases,
the overlap of proportionality tests and principles of fundamental justice, and under the section one test, and so.
My concern here is that what that means is absent.
Section 33.
In section seven cases, a whole lot of the story now never gets told because section seven is highly individualised and largely decontextualised.
What that means is all that's required to establish the violation of a right to life, liberty,
or security of the person is that you establish that one possibly hypothetical person's right has been infringed,
and for the purpose of the substantive principles of fundamental justice.
You then compare that to the legislative objective taken at face value.
That's it. Positive effects don't matter, and none of the interests,
rights or values in tension with those of that rights claimant possibly hypothetical matter to the overall question of constitutionality,
because they would only matter at the section one stage.
But if section one doesn't work, then those things don't become part of the court's analysis of constitutionality.
And they have to, in my view, in a complex society where competing interests are at stake.
So I have sometimes suggested that the public interest that we're talking about in
section one has to include the balancing of interest rates and values in tension,
and often the interest rates and values reflected or expressed by differently situated,
marginalised or disadvantaged groups when they come into tension, choices have to be made.
So I think that section 33rd May illuminate the shortcomings of section one and section seven cases right now,
to the extent that maybe we revisit the section one test again, a whole other talk,
but something that I think is importantly linked to section 33 invocation.
Thank you. Those are my thoughts for today. Okay.
Welcome, everyone. Um, first of all, I want to thank, uh, Peter for the really, uh, kind remarks and for bringing us all together.
Uh, and for the book. All I can say is get it. Read it.
And, um, Peter, for doing the impossible, for finding an issue on which Professor Weber and I are in complete agreement.
Uh, which is really a Herculean task.
So, um, in our debates about the notwithstanding clause, we often imagine that section 33 is to the rest of the charter.
What an apex predator is to the food chain. Right.
The apex predator gobbles up other less fortunate creatures, and section 33 gobbles up other constitutional provisions.
And what I want to suggest today is, as a matter of constitutional interpretation, that is not sustainable.
Section 33 is not the strongest norm in the charter.
The strongest norm in the charter is the guarantee of gender equality in section 28.
And unlike other charter rights, this right is not susceptible to justified limitations under section one,
nor is it susceptible to denials under the section 33 override.
In short, the charter has more than one notwithstanding clause,
and we need to understand the relationship between them to understand the relationship between equality and legislative power.
So in 2019, Quebec enacted Bill 21,
and the act prohibits certain government employees from wearing religious symbols in the exercise of their function.
A Superior Court, Justice,
Blanchard observed that the evidence undoubtedly reveals that the effects of Bill 21 will have a negative impact on Muslim women first and foremost.
Quebec's National Assembly enacted Bill 21,
indicating that the bill operated notwithstanding all of the charter rights that are susceptible to the override.
Sections two and 7 to 15 of the charter and Hawke brought a constitutional complaint, complaining, among other things,
that the act violated section 28 of the charter and neglected under theorised uh provision,
on which there is very little case law, and the provision states the following.
Notwithstanding anything in this charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.
And the whole question here is how do you interpret this provision?
And the literature prevents presents two different interpretations.
So interpretation one this provision tells you how to interpret other provisions, namely sections 2 to 23 of the charter.
It's an interpretive guide to determining the scope of other constitutional provisions and the opposing interpretation.
This provision denies the power of legislative bodies to perpetrate gender equality, inequality, and in Hoc.
The Quebec Court of Appeal spends about 90 paragraphs arguing for the superiority of interpretation.
Once we have a rare full body discussion of how to interpret section 28,
and the Quebec Court of Appeal says, okay, take the provision and the provision has two parts.
So there's an introductory statement notwithstanding anything in this charter.
And then there's the main proposition. The rights and freedoms referred to in it are guaranteed equally to male and female persons.
And the point of the main proposition is to establish the Court of Appeal says a rule of interpretation,
namely to take gender equality into account when interpreting the scope of other constitutional rights.
In turn, the point of the introductory statement notwithstanding,
anything in this charter is to assert the supremacy of the main proposition over other interpretive rules found in the charter.
So, for example, if there's a conflict between gender equality on the one hand and the preservation of our multicultural heritage under section 27,
gender equality prevails. Now, once you see things this way, if you have the Canadian Charter of Rights and Freedoms and Quebec enacts Bill 21,
overriding sections two and 7 to 15,
once you conceive of section 28 as an interpretive rule for the interpretation of other rights in the Constitution,
when these rights have been overridden, there's no substance, or, as the Superior Court puts it, substratum, to which section 28 applies.
Section 28. It's an interpretive rule for other rights if those rights have been overridden.
Section 28 lacks its condition of application. Now, you might ask, well, why should I see it this way?
Why should I adopt interpret? One. And the Quebec Court of Appeal says there are two reasons.
The first is location, location, location.
We have the charter. Section 28 appears under the heading general.
Okay. And the Court of Appeal says all the provisions immediately surrounding section 28 and grouped under the same heading,
set out in one way or another, interpretive provision. So you're in the interpretive section of the charter.
Section 28 then has to be interpreted. Um, uh, as merely giving effect to other provisions.
And they have another reason why you should see it that this way. And this has to do with duplication.
They say any other interpretation of section 28 would duplicate section 15 of the charter,
which already enshrines the equality of individuals without distinction based on various grounds, including sex.
So the claim here is if you abandon interpretation one, you're going to collapse the distinction between section 15 and section 28 of the charter,
and you're going to render a constitutional provision redundant.
Okay. With this, the Quebec Court of Appeal issues its conclusion.
The text of section 28 hardly lends itself to any other interpretation.
Now, when I read this case last February, I wrote in the margins, but you yada yada it over.
The best part that as a textual interpretation this was surprisingly non textual.
And so I want to suggest that there's certain problems in the Quebec Court of Appeals interpretation.
And that interpretation too doesn't present any of these problems.
And it establishes that gender equality is the strongest norm in the charter.
So start with the Quebec Court of Appeals understanding right interpretation.
One of this provision. Right, as we've said, it divides into an introductory statement and the main proposition,
and there's a significant problem with respect to the introductory statement.
The introductory statement reads, notwithstanding anything in this charter.
If the point of the main proposition is to establish the supremacy of taking gender equality
into account as a matter of interpretation and determining the scope of other charter rights.
And the whole point, then, uh,
the introductory statement is just to establish the supremacy of section 28 over other interpretive principles in the same section.
One would expect the text to read as follows.
Notwithstanding anything in sections 25 to 31 of the charter, or notwithstanding anything in this section.
But the text doesn't say that. The text says, notwithstanding anything in this charter.
Now, the big reveal and everyone following at home.
Section one is in this charter. Section 33 is also in this charter.
And so the provision seems to be saying, notwithstanding the notwithstanding clause,
the rights and freedoms referred to in it are guaranteed equally to male and female persons.
Now, in terms of the location location argument, the Quebec Court of Appeal has a problem here too,
which is that the section in which section 28 appears does not say interpretive principles.
It says general, it says general, because everything in this section applies to other provisions in the charter.
But when the charter wants to formulate an interpretive principle, as Professor Carey Frock notes, it has a way of doing so.
So section 28 begins, this charter shall be interpreted and other provisions in the same section begin.
This charter shall be construed when the charter wants to use interpretive language to establish an interpretive provision.
It knows how to do it. Okay. Now, section 28 doesn't use this interpretive language.
Further, it uses the term guaranteed. And guaranteed is a term associated with rights elsewhere in the charter.
See sections one and 24. Okay, now we still have to deal with the duplication argument.
Does interpretation two duplicate sections 15 and 28.
And I want to suggest to you that it doesn't. Now, those of you who are suffering through my constitutional law class will have seen this before.
Constitutional rights have two structural features.
They have a scope or reach, or an ambit, which consists in the protections that the right secures to its bearers.
And they have a strength in the power of the right to withstand opposing considerations.
And these two structural features are the way we distinguish between different constitutional rights.
Now section 15 and 28 on interpretation to have a distinctive scope and a distinctive strength with respect to scope,
section 28 protects the equality of every individual on a variety of different grounds.
And as a matter of strength, section 15 is susceptible to justified limitations under section one and to the override under section 33.
Section 28 is different. Its scope is narrower. It protects only only gender equality and.
Its strength exceeds that of section 15, whereas section 15 is susceptible to justified limitations and to the override.
Neither of those things is true about section 28.
Notwithstanding, anything in this charter, as I've said, means notwithstanding sections one and sections 33.
Gender equality is the strongest norm in the charter.
Now from this, it follows that these provisions do not duplicate each other under interpretation to the court.
That court of Appeals argument is not persuasive if each provision has a distinctive scope and strength under interpretation.
Two one can't say that they collapse into each other, or that one renders the other redundant.
They each have distinctive work to do under interpretation two and further.
It means that section 33 is not the apex predator.
It's not the strongest norm in the charter. There's a right that cannot be limited and cannot be overridden.
And that right is section 33. It's the sorry section 28.
It's it's the strongest constitutional norm.
Now, when the Court of Appeal says the text of section 28 hardly lends itself to any other interpretation, they have a point.
So long as one's not talking about the charter, so long as one's talking about the versions,
the formulations of provisions that were not actually accepted in our constitutional negotiations.
So there was an earlier version of section 28 which said, notwithstanding anything in this charter except section 33,
in which case the Quebec Court of Appeals interpretation would be exactly accurate.
But this provision, this formulation, this language of except section 33,
was rejected in the drafting of the charter because it did not take gender equality seriously and it was not acceptable to the joint Committee.
And further, conversely, there was a provision,
a formulation of the override in 1981 that explicitly indicated that the override trumped concerns of gender equality.
But that, of course, is not the version right that was adopted.
Why it didn't take gender equality seriously acceptable to the joint committee.
And so we've reached this curious state of affairs where the Quebec Court of Appeal has interpreted the charter.
We have in a way that makes nonsense out of the text.
But that makes perfect sense out of the text the Canadians rejected.
Okay, now, if this is right, notwithstanding anything in this charter,
the rights and freedoms referred to in a guaranteed equally to male and female persons.
This establishes a very simple principle the legislator is under an incapacity
that prevents it from perpetuating gender equality as a constitutional matter.
And that means it doesn't matter if Bill 21 uses the override and tries to immunise the legislation from challenge under section two A and section 15.
If the law has adverse impacts on gender equality, which I think is undeniable,
then it is unconstitutional and cannot be justified under section one and cannot be overridden under section 33.
And this brings me back to the statement with which Gregoire directed our attention to right at the beginning of his remarks today.
If interpretation two is the only viable interpretation of section 28,
we need to revisit the seminal statement and forward section 33, the Supreme Court wrote, lays down requirements of form only,
and there's no warrant for importing into it grounds for substantive review of the
legislative policy and exercising the override authority in a particular case.
If interpretation two of section 28 is persuasive.
Then section 28 is the warrant for substantive review of the use of the override on grounds of gender equality.
My point here is very simple. Gender equality is not part of the diet.
Section 33. Thank you. I've made a note never to have my PowerPoint file of Jacob's PowerPoint.
So you'll forgive me for the absence of animation and interesting pictures.
If you were to ask a constitutional lawyer what the legislature achieves by invoking the notwithstanding clause,
you'd likely receive one of two answers. One answer is that the clause, once invoked makes exception or suspends targeted rights and freedoms.
Now, this answer finds some textual support in the clause itself,
which provides that the legislature may expressly declare in legislation that the act or provision thereof shall operate,
notwithstanding a provision included in sections two, 7 to 15.
Be it by relying on this wording or otherwise the received wisdom affirming this reading of the
notwithstanding clause is well entrenched in surveying the legal literature in the clause,
when finds references to how the clause empowers a legislature to override rights derogate from rights making exception to rights,
displace or suppress rights, deny, nullify, abolish, suspend, subordinate or simply trump rights.
On this basis, it said that the first answer to the question what the legislature achieves
by invoking the notwithstanding clause is that the clause overrides rights.
So let's call this the notwithstanding rights answer. A second answer is that the notwithstanding clause makes exception to judicial review.
This answer may be contingent on the first,
and so far as the reason why judicial review is suspended or blocked is because the relevant rights or freedoms are overridden,
and given such overriding, there's simply no cause of action that the relevant rights and freedoms can give rise to.
Thus immunizing legislation from any liability to judicial review on that basis.
But another version of this answer is less contingent on the first and appeals,
and said to the idea that one of the purposes of the notwithstanding clause is to secure some measure of parliamentary sovereignty,
and on a dominant reading of the doctrine of parliamentary sovereignty, the legislature has the right to make or unmake any law whatever,
and no person or body is recognized as having a right to override or set aside legislation on this basis.
The notwithstanding clause is said to deny the power of the courts to strike down legislation,
and we find confident assertions that recourse to the notwithstanding clause allows the legislature to silence the courts,
prevent judicial review exposed to judicial review, enact legislation without interference from the courts put off for five years.
Judicial review of legislation preclude a judicial veto or simply to pre-empt judicial review.
On this basis, it is said that a second answer to the question what the legislature achieves by
invoking the notwithstanding clause is that the clause suspends judicial review.
Let's call this the notwithstanding review answer. Now between them and allowing for some variations in emphasis and expression.
Not standing rights and notwithstanding, review together constitute much of the received wisdom around the notwithstanding clause.
I will argue that these views are wrong and that we should favour instead a third answer, an answer that I'll call notwithstanding.
Remedy. Now it's noteworthy, I think, that none of the key words or expressions just surveyed are to be found in the wording of the clause itself.
In French, the most popular term is derogation.
Derogation as in the clause that I guess well, which, though it has a textual foothold in the French version of the marginal notes of the clause,
is also not found in the wording of the clause itself.
It is also of note that the notwithstanding clause makes no reference to judicial review, and is not formulated as a preventive or ouster clause.
No part of the notwithstanding clause employs terms that affirm that legislation shall not
be questioned or reviewed in any court with respect to the targeted rights or freedoms.
What's more, neither of the received readings of the notwithstanding clause appears to help us make sense.
Justified in the clause, meaning the expressions shall.
Operate and shall have such ration as it would have in the French version, I fear and unethical of.
Once held in view.
I think the key words operate and operation help orient a reading of the notwithstanding clause that is focussed on legislation and legislations,
operation, and not on rights and not on judicial review.
Thus, I want to offer a dissenting view from the received wisdom on the notwithstanding clause.
I want to offer up a notwithstanding remedy answer to our question.
Now, according to the reading of favour, the legal effect of the notwithstanding clause comes into play.
Peter has already intimated to this own soul, finding that legislation is inconsistent with a right or freedom,
a finding that is possible because the rights are not suspended and judicial review is not locked.
And the main basis for my argument draws on the notwithstanding clauses of references to the operation of legislation.
Now, the term operation is not part of the lexicon of constitutional lawyers and thus requires some investigation.
And that investigation brings us to the Constitution's Supremacy Clause.
We there find again the key term of the notwithstanding clause, the term operation in English and its French equivalent.
If. If we see that for any law that is inconsistent with a provision of the Constitution is said to be of no force or effect, and likewise in French,
that any disposition and competitive becomes,
by virtue of that incompatibility or inconsistency in a parent that is inoperable without operation and equivalently, without force or effect.
In light of this pairing of the notwithstanding clause and its focus on the operation of legislation and French,
its effect and the Supremacy Clause, we can return to the prescriptive words of section 33 shall have such operation as it would have.
The significance of these words can be approached by interrogating what the notwithstanding
clause achieves with respect to legislation that would not otherwise be achieved.
So consider first legislation that does not invoke the notwithstanding clause.
If such legislation is consistent with the rights or freedoms the legislation operates, it has its force or effect.
In turn, if such legislation is inconsistent with one or more of the rights and freedoms, that legislation is inoperative.
You know, Bharat has no force or effect. Consider now in of legislation that does invoke the notwithstanding clause.
If that legislation is consistent with rights and freedoms, that legislation will operate it, will it have its force or effect?
So here the US serves no purpose, since the operation of the legislation is simply unaffected.
If, however, such legislation is inconsistent with one or more of the rights and freedoms targeted by the notwithstanding clause,
then that legislation should be inoperative. It shouldn't lose its force or effect.
And here is where the notwithstanding clause makes all the difference.
By invoking the notwithstanding clause,
legislation is able to resist what would otherwise be the consequence of inconsistency between that legislation and rights and freedoms,
namely the loss of the legislation's operation, the loss of the legislations force or effect.
If this is true, then the legal effect of the notwithstanding clause pertains only to the question of the legislation's operation or effect.
The clause leaves open for resolution the question of legislation's consistency with rights and freedoms.
The clause does not override rights. It does not deny judicial review.
The only matters settled by the notwithstanding clause is legislations.
Operation. So in this reading, there is no denying that the legislature is awarded a powerful tool with the notwithstanding clause.
It's a tool to secure legislation's operation, even when such legislation is inconsistent with rights and freedoms.
But it is a limited tool, or it is not one that suspends rights.
Or that prevents a claimant from bringing case to court,
or that prevents a court from informing the public and or representatives that legislation is inconsistent with rights and freedoms.
And so, in the case now before the Supreme Court of Canada,
it should be open to the court to declare that the prohibition on the wearing of religious symbols
in Quebec is a violation of the freedoms of religion and expression and the right to equality.
And in the case now before the Saskatchewan Court of Appeal, it should be open to the court to declare that the province's parental bill
of rights is a violation of freedom of expression and the right to equality.
A judicial declaration will not solve the rights violations, but it will be an all important part of the public,
political and legislative debate that will animate the merits of the legislature's recourse to the clause,
including when the time comes, whether to renew that invocation or when the time also comes,
whether the electorate should punish the government for its actions.