I’m going to toss out a few words and phrases at the beginning of this piece, so readers of all or no political stripe can gauge their immediate reaction: Doug Ford. Toronto City Council. Notwithstanding Clause. Charter of Rights and Freedoms.
Ok. Now that most of you have closed your browsers out of boredom or disgust, I’ll ask any of you still reading to put aside your immediate reactions to those phrases and settle in for a rather long account of what happened last week within a square mile of downtown Toronto that encompasses the Ontario Superior Court, City Hall, and Queen’s Park.
As you can tell from the geography, this has been an intensely Toronto-centric news story, and that fact explains the extraordinary overreaction it has provoked among our national media and commentariat. It’s hard not to conclude that this constitutional kerfuffle is more about Doug Ford and the fact that it’s happening in Toronto – the centre of the universe – than about Section 33 of the Charter, the dreaded “notwithstanding clause.”
By comparison, when Saskatchewan invoked Section 33 last May it barely registered outside the province. If Premier Scott Moe had used the same power last week to reduce the size of the Lloydminster City Council from 7 to 5 two months before a municipal election, I doubt it would have made the front page of a national paper. But now it is happening in Toronto (so it must be important), with the highest concentration of Canadian media and talking heads (so it will be covered as though it’s very important), and it involves Ford (so the media are going to hype it as though it’s extremely important).
Many journalists who didn’t notice or care when Saskatchewan used Section 33 less than four months ago have suddenly found it’s a handy cudgel to rough up a new premier they don’t like. It has also brought out the longstanding anti-Section 33 cranks – the sort of folks who before twitter would have handed out mimeographed pamphlets with lots of random underlining and capitalization about the Great Betrayal of the Kitchen Accord. But for most people, the arcane controversy is probably more puzzling than outrageous. For their sake, this article will start at the beginning of last week’s story and then detour back to 1982 and the origins of Section 33 of the Charter of Rights and Freedoms.
First, let us examine the court decision that sparked the frenzy last Monday.
Lazy commentators make the mistake of labelling any judicial decision they disagree with “activist”, but the decision by Ontario Superior Court Justice Edward Belobaba to strike down the Ford government’s Bill 5 – which would have reduced the size of Toronto City Council from 47 seats to 25 – is not one of those cases.
The court’s ruling was so constitutionally unorthodox that it’s hard to avoid the conclusion that, faced with the problem that the text of the Charter did not provide a reason to strike down the law, the judge simply decided to rewrite the relevant (or, rather, irrelevant) Charter provisions to fit his desired result. This impression was reinforced by a smattering of injudicious asides, like his description of the government’s failure to respond to a relatively minor question as “Crickets”, and the snide observation that Bill 5 had been drafted “more out of pique than principle” – a charge that could be applied equally to the judge’s opinion.
The main problem the court identified with Bill 5 is that it interfered with an election that, if not formally underway, was well on the way to being underway. Most candidates had already registered and many had been campaigning unofficially for months when the Ontario government introduced the bill in late July.
Unfortunately for the judge – and the thwarted aspiring councillors – Section 3 of the Charter, which protects the right to vote, doesn’t apply to municipal elections. This is because, in our system, cities are creations of provincial law and have no independent constitutional status. The provincial legislature could disincorporate the City of Toronto tomorrow, if it so chose. We know this because the “megacity” of Toronto was itself created in 1997 by the Harris government without prior consultations, without notice in an election platform, and over the will of a majority of residents, and that act was upheld by the Ontario Court of Appeal as a legitimate exercise of provincial power.
The lack of an established constitutional reason to nullify Bill 5 did not deter Justice Belobaba. After grudgingly accepting that Bill 5 “appears to fall squarely within the province’s legislative competence,” he simply declared that the underlying principles of Section 3, which doesn’t apply, can be imported into Section 2(b)’s protection of freedom of expression, which does apply. This juridical legerdemain was dressed up with some plausible sounding quotes from precedents that upon closer examination turn out to be inapplicable: a Section 3 case from the Supreme Court of Canada that never once mentions Section 2, another that explicitly rejected a s.2(b) argument, and an Ontario Court of Appeal case that also rejected a Section 2 argument.
In finding that the candidates’ freedom of speech had been unjustifiably impaired, Justice Belobaba glossed over the fact facts that there is no right to be a city councillor, no right to run for a position that no longer exists, and that there had been no restriction of the candidates’ ability to speak, only their desire to speak from the platform of city councillor. I am sympathetic to the affected candidates, and I agree the late changes to the election were unfair to some of them, but political unfairness is not in itself a Charter violation.
Judicial activism this brazen invites a proportionately bold political response, and Premier Ford quickly provided one. At a press conference a few hours after the decision was released, he promised to invoke a constitutional power designed to give legislatures the final say when they disagree with a court decision – Section 33 of the Charter – and to reintroduce the provisions of Bill 5 (now Bill 31) so that the municipal election could take place as scheduled, under the new rules announced in July.
The media reaction was volcanic.
Most of it uninformed and misleading, driven by anti-Ford or anti-Section 33 agendas. And those were the measured reactions. Others were downright hysterical, including claims that Ford had “triggered the nuclear option” and “cut the life out of our most sacred rights” and was “trampling on the rights of all Ontarians”. A Toronto Star cartoon even depicted the premier as a Canadian Hitler in the making.
Some perspective is in order. If you hear someone shrieking about Ford undermining our constitutional democracy or gutting the Charter, find them a paper bag to breathe into and then calmly explain the following things to them until their heart rate returns to normal.
First, gently remind them that Section 33 is itself part of the Charter, as much as any other section. Then quietly point out in some other free and rights-respecting western democracies like Australia, New Zealand, and the United Kingdom, the courts can’t strike down laws in the first place. There is no need for a constitutional “override” or “exemption” in those countries because their parliaments are not subject to a Charter. It is as though every legislative act is shielded by an implicit Section 33. These countries are among the freest in the world and aren’t permanently on the brink of incipient autocracy.
Parliamentary supremacy is also an integral part of our own constitutional heritage. Section 33 is a residue of the unfettered authority that Canadian legislatures also enjoyed until 1982. Withered and atrophied though it may be, the power to legislate “notwithstanding” certain other (but not all) provisions of the Charter at least gives Canadian legislatures some ability to push back against recent judicial encroachment into matters of social policy.
As Jean Chrétien, who before he became prime minister was the justice minister charged with negotiating the Charter, described it, “[t]he purpose of an override clause is to provide the flexibility that is required to ensure that legislatures rather than judges have the final say on important matters of public policy.” Asked years later if he still favoured the inclusion of Section 33, he answered: “It would be the same situation. It was a philosophical debate. Because some would argue that in a society the elected people have to be supreme – not judges – and I subscribe to that.”
Chrétien is right. Section 33 is an admonitory constitutional reminder that if judges want to play politics, legislatures can too. Frankly, considering the aggressively usurpative appetite of Canadian courts since 1982, Section 33 should have been used much more often, as its mere presence in the Charter and sparing invocation has done nothing to chasten courts inclined to act as a supra-legislature.
Some critics have argued that the size of a city council isn’t important enough to use Section 33. In practice, however, it has usually been invoked on such secondary political issues. Pierre Trudeau may have assured the Archbishop of Toronto, Cardinal Emmett Carter, that parliament would invoke Section 33 if the courts ever found a right to abortion, but in retrospect the clause was always unlikely to be used on the most incendiary social issues. When abortion, gay marriage, and euthanasia were each “constitutionalized” by the courts, support and opposition for the decisions cut across party lines. Invoking the notwithstanding clause in those cases would have provoked explosive public debate and division and riven the governing party’s caucus.
That leaves Section 33 to be used on more mundane matters like appointing land-planning committees (as Yukon used it in 1982), settling strikes and funding religious schools (as Saskatchewan used it in 1986 and 2018), and fiddling with municipal elections (as Ontario is now using it). Only in Quebec, which never signed on to the Charter, has it been used to resolve more controversial cultural questions like the province’s restrictive language laws.
I am inclined to agree with those who say it would have been better to invoke Section 33 on an issue that doesn’t look so much like family score-settling by Premier Ford. I worry that “playing politics” in this way will discredit a legitimate governmental power. But my concern is a prudential rather than a legal limitation and besides, the court’s reasons for striking down Bill 5 were so clearly unsound that if Section 33 isn’t an appropriate constitutional response here, when would it ever be?
The most committed critics of Section 33 would answer: never. But most of them have long wanted to rewrite our constitutional order to complete the neutering of parliament by eliminating the legislative override altogether. They dismiss it as a tawdry by-product of political horse-trading and treat it as a vestigial constitutional organ whose only value was in securing the support of a few renegade western politicians but which, having served its original purpose, should be excised for the good of the body politic. This revisionism is wrong. It ignores the deep principles and the prescient skepticism of the leaders from very different political backgrounds who insisted Prime Minister Pierre Trudeau include Section 33 in the Charter.
It cannot be understated how revolutionary the idea of transferring Canadian constitutional supremacy from parliament to the judiciary was in 1981, so it is not surprising that it inspired skepticism and outright opposition. The heroes of this resistance were the three prairie premiers: Alberta’s PC Premier Peter Lougheed, Saskatchewan’s NDP Premier Allan Blakeney, and Manitoba’s PC Premier Sterling Lyon. Their concerns were all rooted in the observed experience of the United States – the only comparable country with a long history of a constitutionally-supreme Bill of Rights – but their specific fears reflected their very different political perspectives.
On the one hand, Lyon knew from recent American history that giving courts the power to strike down democratically-enacted laws on substantive grounds would tempt judges to overreach the text of the constitution and interpose their preferred policies for the legislature’s. This worried conservatives who had seen American courts invent rights that were not contemplated by the original meaning of the constitution, especially under the Warren and Burger courts of the 1960s and 1970s. Recall that in 1981, when Canada was drafting and debating our Charter, the decision in Roe v. Wade was only eight years old.
On the other hand, progressives like Blakeney and long-time Canadian Civil Liberties Association general counsel Alan Borovoy cast a wary eye back to the first half of the twentieth century, when American courts had repeatedly frustrated Depression-era labour and social welfare laws. In Blakeney’s view, social policy should be used to secure rights and freedoms like Franklin Roosevelt’s “freedom from want” that were not amenable to precise delineation in a Charter, but were every bit as important as the enumerated Charter rights. He believed that governments should not be so handcuffed by the Charter that they could not legislate to vindicate these other rights and interests even where they clearly clashed with Charter rights.
These different concerns show that from the beginning it was anticipated that Section 33 would be useful in at least two different situations. The first is where the legislature legitimately disagrees with a court’s interpretation of the scope of a Charter right and believes the decision needs to be corrected. The second, which corresponds to Blakeney’s and Borovoy’s views, is where the furtherance of an important non-Charter right or interest requires the government to make the political calculation to infringe a Charter right even where everyone, including the legislature, agrees on the proper interpretation of that right.
The Ford government was faced with the first situation. It was right to conclude that the judge’s decision is constitutionally unsound and Section 33 is therefore a legitimate use of the Charter in response. Whether it is also an appropriate political response, however, is a different question, the answer to which will be determined by whether the government suffers any electoral consequences.
The best argument against the Ontario government’s decision to invoke Section 33 is that it should be a last resort. It is usually preferable to deal with a bad lower court decision by appealing it so a higher court can correct the error. Section 33 would only be used if the Court of Appeals (or ultimately the Supreme Court of Canada) fails to fix the problem. Whether you agree that the Ontario government should have waited to see how the appeals process plays out will depend on whether you think it was pressingly important to reduce the size of Toronto city council in time for next month’s election, rather than wait another electoral cycle (or temporarily postpone the election while Bill 5 is implemented). This criticism is valid and understandable, but, again, these are political rather than constitutional considerations.
Most interestingly, former premiers who have spoken out are divided on Ford’s use of Section 33. Former Ontario PC Premier (and Charter co-framer) Bill Davis, warned of legislative tyranny, telling TVO’s Steve Paikin: “That [the notwithstanding clause] might now be used regularly to assert the dominance of any government … over the rule of law or the legitimate jurisdiction of our courts of law was never anticipated or agreed to.” Former Saskatchewan Premier Brad Wall, whose government was the last before Ford’s to invoke Section 33, disagreed, calling it “an important tool for premiers.” “Let’s be very clear,” Wall said, “Section 33 is part of the Constitution. And so, the availability of the notwithstanding clause to premiers is very much a part of the rule of law. It’s also a part of a check-and-balance we have in terms of the judiciary and the elected legislatures and the Parliament of Canada.”
With due respect to Davis, Wall is right. A provision of the constitution can’t be used “over the rule of law.” The constitution, including parts some people don’t like, is the supreme law of Canada and Ford is asking the legislature to use Section 33 in the service of the rule of law, to correct a misuse of the Charter by the court. It is thus being used precisely as anticipated by many proponents of the clause back in 1982.
Wall’s defence of Ford also raises a more fundamental defence of Section 33. Canadians who justify their criticism of Ford by saying they are defending the constitution and protecting the rights and freedoms set out in the Charter are aiming at the wrong target. They should be focussing their ire on the court that warped and abused the Charter to reach a political result, not on the government that has exercised two clear constitutional powers, first in Bill 5 and now by invoking Section 33.
Extrapolating this point beyond the present controversy, it is fair to ask: where have all these Charter champions been as the courts have repeatedly broken the constitutional compromise embodied in the Charter? Where are their columns protesting as judges have all-but-abandoned the text’s original meaning and intent and treated it as a roving commission to second guess legislatures in favour of what they think is right?
Canadian courts no longer consider themselves bound by the Charter as it was drafted or by constraints intended to encourage deference to democratically-elected governments. This amounts to an enormous and unpredictable arrogation of legislative power to unaccountable judges that was neither anticipated nor desired by many people who supported the Charter in 1982, including Pierre Trudeau.
If you could go back and show the premiers and parliamentarians who voted for the Charter the most controversial Supreme Court of Canada decisions of the last three decades, most would be genuinely shocked. If they knew how creatively courts would interpret the text – including phrases specifically drafted to avoid American-style judicial activism – it is likely that either the Charter would never have been enacted or that the drafters would have given Section 33 even more teeth. That is why Section 33 is even more relevant now than ever.
Few judges have any training or experience in government, and courts lack the institutional advantages of a legislature or government when it comes to resolving complex social and fiscal issues or reconsidering and revising policies to suit changing conditions. Handing the courts effective policy-making power without any check or balance would have been constitutionally irresponsible. Thank goodness Premiers Lougheed, Blakeney, and Lyon were wise enough to see the folly, anticipate the danger, and insist on the safeguard of Section 33 – and thank goodness for current premiers who aren’t afraid to use it.
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