In recent weeks, there has been an exceptional amount of commentary about Ottawa’s efforts to limit the provinces’ use of the Charter’s notwithstanding clause.
This clause, section 33, permits legislatures or Parliament to temporarily suspend the application of Charter rights to specific laws for up to five years at a time.
The federal government is asking the Supreme Court to consider whether it can declare Charter rights to have been violated, even if governments override them; and to allow courts to review repeated use of the notwithstanding clause.
In response to these arguments, some conservative commentators have gone so far as to suggest the Charter was a mistake. Others have insinuated that judges have radically stepped outside their constitutional role and that their rulings ought to be ignored.
Such conclusions are extreme and risk undermining the courts’ essential role in preserving the rule of law. But they also point to why the notwithstanding clause is vital.
There are times where judges do have unique insight and it is prudent for them to play a fundamental role in legal interpretation.
In matters of criminal law and procedure, for example, or discrimination cases, courts draw upon centuries of common law experience to protect the legal rights of individuals. These areas of law raise quintessentially legal questions where common law reasoning can analogize present circumstances to timeless principles. Legislatures may not do the same. On the contrary, it is likely that legislatures are going to be particularly disinclined to consider the rights of those accused of crimes. Ignoring judicial rulings in this area allows government actors to run amuck.
On the other hand, recent years have seen courts interpret the Charter in ways where their expertise is incredibly dubious. Recent topics covered in Canadian Affairs are illustrative: court rulings on matters of drug policy and assisted suicide have taken the courts far beyond any kind of traditional common law reasoning and have hamstrung legislatures’ ability to act, despite lives literally being on the line.
The Supreme Court’s PHS decision, in 2011, held that the federal government offended the Charter’s right to life and security of the person by not renewing the permit of a supervised drug consumption site in Vancouver. This decision has since been used to prevent legislatures from introducing innovative policy in response to the opioid crisis.
The Court’s 2015 Carter decision reversed more than two decades of case law to hold that the Charter’s guarantee of a right to life also included a right to physician-assisted death. Ten years later, if legislatures attempt to restrict MAID, it draws immediate cries that doing so violates their Charter rights.
Had the courts held that these were matters beyond their purview, we would not be in this position today. Unlike legislatures, courts did not have evidence of the collateral consequences on society of these rulings. Courts concentrate on the parties before them, and are rightly moved to address the acute interests of the parties before the court.
Would legislatures have ignored issues such as the drug crisis or physician-assisted death if the courts had not intervened? Almost certainly not. We see legislatures grappling with these same issues elsewhere in the world.
Legislatures likely would not have implemented the exact laws activists most wanted — but the compromise would likely have been more enduring. Theoretical appeals to “dialogue” between courts and legislatures do not reflect the reality that our experience under the Charter has generally been, as former Alberta cabinet minister Ted Morton said, “a monologue, with judges doing most of the talking and legislatures most of the listening.”
Politicians, unable to respond in an appropriate policy matter to issues where courts have dubious expertise, may well be tempted to stack the courts with ideologically sympathetic judges. Even more egregiously, they could engage in judicial intimidation or ignore court rulings. This would be anathema to the rule of law, and damaging for the courts’ reputation.
There are worrying signs that Canada may already be at the early stages of the courts losing the respect of the populace. Courts aren’t helping themselves when they step outside their lane. (The less said about a constitutional right to not have a particular bike lane removed from a particular street, the better.) It is essential that courts remind themselves that they are there to apply legal principles. This is a reason that lawyers, rather than moral philosophers or public policy wonks, become judges.
The Charter’s notwithstanding clause, however, prevents the need for a race to the bottom. It allows legislatures to achieve their policy outcomes and face democratic accountability.
While some commentators have argued that the Charter’s drafters believed the notwithstanding clause was to be used only exceptionally and in emergencies, Saskatchewan NDP Premier Allan Blakeney made it quite clear that he was open to using section 33 simply because a court had misconstrued a right.
Courts are essential in our constitutional order. And there are indeed times where legal expertise and legal training makes courts better-suited than legislatures to determine certain matters.
When courts move beyond those areas, however, legislatures can either: a) accept that bad judicial decisions are final; b) respond by undermining judicial institutions, despite their important role in our constitutional order; or c) use the notwithstanding clause and be judged by the populace for doing so.
There is no doubt which one is the healthiest option in a liberal democracy. Section 33 preserves the roles of the courts and legislatures in our constitutional order — and protects courts from themselves.
