Judicial activism continues unabated, and with it, judicial power grows apace. Despite a decade of academic and political criticism, the Supreme Court of Canada continues to expand the scope and frequency of policy mak- ing under the Charter.
The success rate for Charter cases decided by the Supreme Court in 2002 was over 60 percent ”” double the rolling average for the past decade. The pretence of judicial-legislative dialogue was shattered by the Supreme Court’s prisoner-voting ruling last December. The same-sex marriage juggernaut continues to roll through the lower courts, despite Supreme Court precedents to the contrary. In the last 18 months, judges have used the Charter to revamp health policy, labour law and welfare benefits and have dismantled much of Harris’s common-sense revolu- tion in Ontario. In the 2002 Gosselin ruling, the claim to a con- stitutional right to welfare was defeated by one vote ”” with the chief justice explicitly reserving the right to change her mind ”” and thus the meaning of the constitution ”” in the future.
For the cluster of rights advocacy groups that both promote and benefit from the courts’ Charter activism ”” the Charter revolution is far from over. Nor will it be over until its partisans are deprived of their primary weapons of political influence. These include:
compliant if not co-operative judges,
federal funding of rights advocacy groups through the Court Challenges Program,
public acquiescence in judicial supremacy,
monopoly of orthodoxy in the law schools and legal profession, and
public stigmatization of the section 33 notwithstanding clause.
My comments here are restricted to this last issue: Can the notwithstanding clause ”” the legislative override ”” be resurrected?
The failure to check excessive judicial activism under the Charter is surprising, because the Canadian framers anticipated this prob- lem and provided a direct remedy: the section 33 notwithstanding power. Section 33 of the Charter allows a gov- ernment, federal or provincial, to protect its legislation from judicial review under sections 2 (fundamental freedoms), 7-14 (legal rights) and 15 (equality rights). To do this, a government must insert a clause in the contested piece of legisla- tion declaring that it ”œshall operate notwithstanding” any provisions of the Charter. The use of section 33 is limited by a five-year sunset clause, at which time it ceases to have any legal effect. Alternatively, it may be renewed for another five-year period. Since it was intended to serve as an instrument for legislatures to respond to incorrect or unacceptable judicial decisions, it is commonly referred to as the ”œlegislative override” power as well as ”œopting out.”
Section 33 was one of the compro- mises worked out between Prime Minister Trudeau and seven of the eight provinces that opposed his ”œconstitu- tional patriation” plans in 1980-81. Eight provinces (all but Ontario and New Brunswick) opposed Trudeau’s pro- posed charter of rights because it trans- ferred so much power to judges, especially the Supreme Court. They thought that this empowerment of the judiciary conflicted with Canada’s long- standing tradition of parliamentary democracy, and that it would under- mine the capacity of the provinces to be self-governing. They feared that feder- ally appointed superior court judges would use the Charter to unfairly strike down provincial policies.
Their acceptance of the Charter in November, 1981 was conditional upon Trudeau’s acceptance of the legislative override power. As described by former Alberta premier, Peter Lougheed, ”œThe final ”˜deal’ on November 5, 1981 was, as is almost always the case, a trade-off. Essentially Trudeau got his Charter of Rights and the western premiers got both the Alberta amending formula and a notwithstanding clause.” Without the notwithstanding clause, there would have been no Charter of Rights.
The notwithstanding device was not new. A similar clause was part of John Diefenbaker’s Canadian Bill of Rights in 1960. In Alberta, when the newly elected Tories took office in 1972, they enacted an Alberta Bill of Rights, which included a notwithstanding clause. Similarly, the Quebec Charter of Human Rights and Saskatchewan Human Rights Code also contained a notwithstanding clause prior to the adoption of the Charter.
Because of his personal familiarity with the notwithstanding device, Lougheed took the lead suggesting it as a way to break the federal-provincial deadlock over the proposed charter of rights in 1980-81. As Lougheed later explained: ”œThe then premiers of Manitoba and Saskatchewan and the premier of Alberta took the position in the constitutional discussions that we needed to have the supremacy of the legislatures over the courts…we did not [want] to be in a position where public policy was being dictated or determined by non-elected people.”
Contrary to what critics believed, section 33 was not a ”œright wing” con- spiracy. The then NDP premier of Saskatchewan, Allan Blakeney, was even more adamant about including an override provision than Lougheed, and successfully insisted on other changes in the wording of the Charter to pre-empt judicial activism. Looking back in a 1997 interview, Blakeney explained, ”œI had real reservations about a constitutional Charter of Rights and Freedoms, because of its ongoing tendency to have the courts heavily involved in decisions which are essentially political and hence brings about a politicization of the courts.”
Nor was the Liberal government opposed to section 33, since it gave the federal government the same power, something that its provincial supporters had not demanded. When Trudeau’s then justice minister, Jean Chrétien, introduced the amendments in the House of Commons on November 20, 1981, he defended sec- tion 33 on principle, not just as a ”œnec- essary evil.” Section 33, Chrétien explained, would serve as a ”œsafety valve” to ensure ”œthat legislatures rather than judges would have the final say on important matters of public policy.”
Commenting at the time of the November 1981 compromise, Alan Borovoy, founder and long-time execu- tive counsel of the Canadian Civil Liberties Association, positively assessed section 33:
Canada at the moment is a par- liamentary democracy in which the will of Parliament is supreme. If there were no notwithstandings in the proposed Constitution, this supremacy would shift to the judges who would decide whether or not a law offended the Constitution…By making it legally possible but politically difficult to override the Charter, they have married the two notions…The result is a strong Charter with an escape valve for the legislatures.
Since then, academic commentators have provided a variety of descriptions of section 33 that capture its attempt to bal- ance the power of accountable govern- ments and nonelected judges. Professor Paul Sniderman of Stanford University has elaborated on this in a book pub- lished by Yale University Press in 1996:
The root issue is who shall have the final word: the courts in their role as ultimate authorities on the Charter, or the parliaments, in their role as ultimate represen- tatives of the public? Regimes fol- lowing the American model have invested final decision-making power in courts; regimes follow- ing the English model have put it in Parliament. What distinguish- es the Canadian regime is its deliberate effort to forestall an authoritative answer to the ques- tion of who shall have the final word. The Canadian political order invests final institutional power simultaneously in the courts, above all the Supreme Court, and in parliaments, both federal and provincial.
While it has since become stylish to dismiss the notwithstanding clause as an unfortunate concession, no less an authority on constitutional matters than University of Toronto’s Professor Peter Russell has given it high marks:
The override gave Canada an opportunity to get the best out of British and American con- stitutionalism…to strike a shrewd balance between the wisdom derived from these two parts of our heritage…The Charter…establishes a prudent system of checks and balances which recognizes the fallibility of both courts and legislatures and gives closure to the deci- sions of neither.
Despite such an auspicious birth, the notwithstanding clause soon fell upon hard times. Outside Quebec, it has been used only three times in 22 years. In addition to Quebec’s omnibus use of section 33 between 1982 and 1985, the notwithstanding clause has been used 16 times by four different governments: Yukon (1), Saskatchewan (1), Alberta (1), and Quebec (13). As of 2001, eight instances were still in force. Almost all have been preemptive uses to prevent judicial review. Policy areas include back to work legislation, land-use planning, pension plans, education, agricultural operations, and same-sex marriage (Alberta’s 2000 Defense of Marriage Act).
As evidenced by the recent House of Commons debate over homosexual marriage, its many critics have stigma- tized it to the point that some com- mentators claim that it has fallen into desuetude and is no longer politically acceptable ”” much like the federal dis- allowance power. How did this happen?
Like so many other anomalies in Canadian politics, the demise of section 33 can be traced to Quebec. In English- speaking Canada there was a wide- spread backlash against Quebec’s use of the notwithstanding clause to suppress the language rights of English-speaking Quebecers. For the past 20 years, the Mulroney and then the Chrétien gov- ernments have avoided legitimating Quebec’s use of the notwithstanding clause by refusing to use it themselves.
A second contributing factor has been the public disillusion with parlia- mentary institutions and elected politicians that afflicts all Western democracies. Voters’ declining confi- dence in elected governments has been accentuated in Canada by execu- tive dominance. As several surveys have shown, many Canadians trust judges more than they do politicians.
These are the conventional explana- tions for section 33’s demise, and they are accurate as far as they go. Less obvi- ous, but no less true, is that the Supreme Court of Canada ”” like its American counterpart ”” is part of the national governing coalition. It reflects and pro- tects the coalition of interests that appointed its judges. Since the coming into force of section 15 in 1985, the Dickson, Lamer and McLachlin Courts have served as a partner of ”” not a check on ”” the Mulroney and Chrétien governments.
As Trudeau anticipated, a judicial ally armed with the Charter allows the Feds to achieve indirectly ”” through judicial fiat ”” what they could not achieve directly, or at least not without unacceptable political costs. Skeptics are constantly chided that the Court uses the Charter to protect minorities. Of course it does. The question is: which minorities?
When the Court engages in judi- cial activism to advance a policy demand of a minority interest favoured by the Liberals ”” such as the anglophone minority in Quebec, femi- nists and more recently gay rights activists ”” the Liberals happily do what the Court tells them to do, pro- claiming that they have no choice.
At the provincial level, the non- use of section 33 (other than Quebec) is more surprising, since it was provincial premiers who fought for it. Provincial reluctance to invoke the notwithstanding clause is partially explained by the same factors that have inhibited its use at the federal level ”” the Quebec stigma and lack of legitimacy.
I will suggest another less obvious contributing factor: the fallacy of assuming that legislators have an interest in defending the prerogatives of legislatures; i.e., that politicians put long-term institutional interests ahead of short-term partisan interests such as re-election. It is politically safer to pass the buck to the judiciary, even though democratic accountability and the pol- icy autonomy of your provincial legis- lature are eroded in the process.
This incentive is accentuated by the familiar ”œstaying power of the pol- icy status quo.” Politically speaking, it is easier for a government do refuse to give a group a ”œnew right” than to take away an ”œexisting right.” In the first instance, the government is simply ignoring a claim for special treatment. In the latter case, they can be por- trayed as attacking the group. This is especially true when the issue involves cross-cutting cleavages ”” such as gay rights or abortion ”” that divide cau- cuses and party members.
Can section 33 be resurrected? At the federal level, the answer is proba- bly no; and certainly not by the Liberals, for whom the Supreme Court is an important ally. The Canadian Alliance is committed in its policy book to the responsible use of the notwithstanding clause, but its ascen- dancy to government does not appear imminent. The more likely scenario is at the provincial level. Again, Quebec is the model.
The project is two-pronged. First the myth of judicial infallibility must be challenged and unmasked. The Court’s defenders blythely claim that the Charter means whatever the judges say it means. If this were true, then it would mean one of two things: either the Charter cannot be misinter- preted, or the judges are infallible. Both, of course, are absurd claims. The concept of judicial infallibility is con- trary to both common sense and his- tory. (The US Supreme Court once ruled that African slaves were not human beings; the Canadian Supreme Court that women were not persons.) As a former chief justice of the United States dryly observed, the judges are not final because they are infallible. They are infallible because they are final.
The second prong of the challenge is for a provincial premier to craft compelling public rhetoric that makes the exercise of section 33 a legiti- mate defense of provincial rights and democratic self-gov- ernment. The Supreme Court (in its Vriend decision) and Professor Peter Hogg ”” the originator of the ”œdialogue the- ory” ”” have provided some assistance by identifying the notwith- standing clause as a legitimate instru- ment of judicial-legislative dialogue.
Here we can learn something from former Ontario Liberal premier Oliver Mowat’s successful battle against the federal power of disallowance in the 1880s. Federal disallowance could not be tolerated, Mowat argued, because it destroyed the political liberty of provin- cial voters. Mowat pointed out that if the opposition in the provincial legisla- ture could appeal to their political allies in Ottawa to use disallowance to reverse every policy vote they lost, then ”œresponsible government is at an end.” The ultimate question,” Mowat thun- dered, was ”œwho shall govern the province ”” the majority or the minori- ty? ”” the ministry to whom the electors have entrusted the Government, or the minority whom they refused to trust?”
In the 19th century, Mowat’s appeal to ”œresponsible government” could carry the battle. But not so today. Executive-dominated legislatures have fallen into disrepute. Courts and judges have filled the vacuum. Rather than seeing governments as embodying the spirit of democracy, many Canadians see them as unaccountable and unre- sponsive. The depth of this disillusion- ment is captured by Pierre Trudeau’s successful packaging of the Charter of Rights as ”œthe people’s package” ”” an oxymoron of the first order.
Within this new context, the most promising approach to resurrecting the notwithstanding clause comes from Scott Reid: to rehabilitate the notwithstanding clause, you must first democratize it. Section 33 can only be as legitimate as the institution that wields it. The failure of section 33 to serve as an effective brake on judicial supremacy reflects the public’s low esteem of legislatures. Reid’s solution is to transfer the exercise of the notwith- standing clause to ”œthe only institu- tion that commands more popular respect than the court system ”” the popular will itself.”
Under this approach, the decision to use the notwithstanding clause would be put to a provincial referen- dum at the next practical date (usually a provincial or municipal election). This could be mandatory or optional. The referendum could be held either before or after the notwithstanding clause was invoked by the government. If use of the notwithstanding clause is optional, there is a compelling case for giving the opposition (or any grouping of say 20 percent of the MLAs) as well as the government the power to call for a referendum. In the referendum, the people of the province would be asked to choose between the Court’s policy and the government’s policy, or per- haps a new compromise.
Democratizing the notwithstand- ing clause is not politically impossible. In 1999, the Alberta government appeared to be adopting Reid’s solu- tion. Alberta’s Bill 38, ”œConstitutional Referendum Amendment Act,” was introduced and went to second read- ing before the government abandoned the plan. This decision was driven by internal caucus politics, not by public opinion. I concur with Reid that the example of the national referendum over the Charlottetown Accord sug- gests that [a majority of] ”œCanadians may be unwilling to vest supreme power in their politicians, but they have no fear of exercising the power to ratify or veto their own fundamental laws by direct means.”
A democratic override promises to provide a more effective check on judicial excess and overreach. But it is also defensible on principle. It is consis- tent with the norm that constitutional rules should command a substantial degree of public consensus and support before being adopted. Most of the con- troversial Charter decisions are de facto amendments to constitutional mean- ing. (E.g., adding sexual orientation to section 15, extending the section 3 right to vote to prisoners, and extend- ing section 6 rights to enter or remain in Canada to noncitizens.) Why should they not be subjected to the same high threshold of public acceptance as for- mal amendments? Two provinces ”” B.C. and Alberta ”” already require ref- erendums to approve formal constitu- tional amendments. Why shouldn’t judicial amendments be subjected to the same test?
This is particularly true for a Supreme Court that loves to invoke Lord Sankey’s ”œliving tree” metaphor to support its novel interpretations of Charter meaning. The judges’ claim that they are simply keeping the con- stitution in tune with the changing times should be put to the test of pop- ular ratification. Judges are drawn from the elite lawyering class ”” one- tenth of 1 percent of Canadians ”” unelected and appointed until age 75. The pretence that they are an accurate barometer of changing public opinion verges on farce.
Popular control of judge-made policy can also be defended on the basis of rights theory. Noted legal the- orist Jeremy Waldron has recently pro- vided an influential rights-based critique of constitutional rights. According to Waldron, giving judges the final word on the meaning of con- stitutional rights is inconsistent with the most important of all rights, what he calls the ”œright of rights” ”” the democratic right of ordinary people to participate in an equal manner in pub- lic decision making. Giving judges the final say makes everyone else second- class citizens.
In sum, there is no shortage of raw materials to construct a powerful pub- lic rhetoric for subjecting judicial review to popular control by transfer- ring the decision to invoke the notwithstanding clause from the politicians to the people.
The most compelling arguments against the democratic override are the inherent dangers of referendums and plebiscites. My colleague Rainer Knopff has offered a powerful critique of pop- ulism as the mirror danger of rights- talk. The experience of Quebec has taught us the tendency of referendums to polarize society around shallow and simplistic slogans. On the other hand, the experience of Switzerland and some US states shows us these tenden- cies are not inevitable.
On balance, I would certainly cast my lot with letting the people decide, and I strongly suspect the majority of Canadians would as well, were they given the opportunity. Of course, the whole thrust of Charter litigation has been to keep decisions like homosexual marriage as far from the people as possible, so it remains to be seen whether Canadians will ever be given the opportunity to reclaim their most basic right, the right to self-government.