Invoking the notwithstanding clause, as Quebec has done with Bill 21, does not shield a law from being reviewed by a court for violating rights.
(This article has been translated into French.)
Section 33 of the Canadian Charter of Rights and Freedoms has often been described, including by the Supreme Court of Canada, as an “override provision” that allows legislation to override Charter rights and freedoms. According to received wisdom, the notwithstanding clause bars judicial review of legislation that is shielded by it. Quebec Premier François Legault so supposes when he explains his government’s recourse to the notwithstanding clause in Bill 21, An Act respecting the Laicity of the State, as a way to “avoid lengthy judicial battles.”
And yet the text of section 33 does not support this received wisdom. The word “override” appears nowhere and there is no mention of “judicial review.” Rather, the text of section 33 focuses on shielding a law’s “operation.” It states that declaring that a law shall operate notwithstanding one or more Charter rights will secure for the legislation “such operation as it would have but for the provision of this Charter referred to in the declaration.” The equivalent term in the French version of section 33(2) is “effet,” providing that a law invoking the notwithstanding clause “a l’effet qu’elle aurait sauf la disposition en cause de la charte.”
In the Charter’s nearly 40 years of existence, no court has addressed the meaning of this phrase in section 33(2), let alone settled it. The Supreme Court of Canada in Ford v. Quebec (1988) ruled on the formal requirements in section 33(1) for invoking the notwithstanding clause. But the Court was not asked about, nor did it rule on, the significance of shielding a law’s operation. What does it mean?
Normally, if legislation is inconsistent with the Charter, such legislation has “no force or effect” by virtue of the Constitution’s supremacy clause. The French version of the supremacy clause refers to the operation of legislation: “La Constitution du Canada…rend inopérantes les dispositions incompatibles de toute autre règle de droit.”
Here is the key to understanding the meaning of section 33(2). It does not preclude judicial review. Rather, the chief effect of the notwithstanding clause is to shield the operation of legislation, even if that legislation violates a right or freedom guaranteed in the Charter. It prevents a rights-violating law from being of “no force or effect.”
How does this understanding of section 33 challenge received wisdom? We argue that an individual or group may challenge a law shielded by section 33 in court and that a court may determine whether the law violates Charter rights. If it does, a court may declare that the law violates rights.
Some will ask, what is the point of judicial scrutiny of legislation if rights are declared violated but legislation still operates? After all, while a law is shielded under the notwithstanding clause, that law will have “such operation as it would have but for” the Charter rights and freedoms it violates.
To this question, we offer three answers. First, citizens will be better able to judge a government for invoking section 33 if a court, after full and fair argument, has ruled on whether the law violates rights. Section 33 allows the democratic branches of government to have the ultimate say, but it also invites the electorate to judge a government’s decision to use it. That is why each use of section 33 lasts at most five years, the maximum time allowed by our Constitution between elections.
Second, the judicial process offers a precious avenue for minorities that might have little opportunity to make their voices heard by the democratic branches of government. Sensitivity to minorities’ vulnerability to majoritarian will is a key justification for judicial review under a charter of rights.
Third, a judgment on how a law affects fundamental rights may alter the law’s political standing. Informed by the reasoned, evidence-based judgment of an impartial, independent court, the government might amend its policy or decide to allow section 33’s protection to lapse.
Beyond its fidelity to the constitutional text and the value of judicial scrutiny of legislation shielded by section 33, our reading coheres with Canada’s constitutional order. Within that order, the courts have a crucial role. The Supreme Court has rightly ruled that “if people cannot challenge government actions in court, individuals cannot hold the state to account ― the government will be, or be seen to be, above the law.” In challenging the received wisdom on section 33, we argue that even legislation invoking the notwithstanding clause is not above the law. The judicial role is resilient, not easily dislodged. Ousting the role of courts in ruling on Charter rights would require explicit constitutional language.
A judicial declaration that legislation invoking the notwithstanding clause violates Charter rights would be true to the judiciary’s duty to say what the law is. Such declarations are consistent with what our courts already do. In the 2010 case of Omar Khadr, for example, the Supreme Court declared that the Government of Canada had violated Khadr’s Charter rights, but left it to the government to right the wrong.
Furthermore, our understanding is consistent with the respect for parliamentary supremacy that many see as animating the inclusion of section 33 in the Charter. The human rights regimes in the United Kingdom, New Zealand and Australia (the Australian Capital Territory and Victoria) all provide that judges may declare legislation incompatible with human rights, but such declarations do not affect the operation of legislation. Parliamentary supremacy does not require that judicial review be silenced. Indeed, in the United Kingdom, where parliamentary supremacy remains constitutionally fundamental, it was predicted that a judicial declaration that a law is inconsistent with rights would “almost certainly prompt the Government and Parliament to change the law,” and it has.
Section 33 secures a law’s operation; it does not open a Charter black hole. Constitutional scrutiny by courts is an indispensable resource for the public’s assessment of a government’s recourse to section 33. Returning to the example of Quebec’s proposed secularism law, we contend that, whether or not Bill 21 eventually operates “notwithstanding the Charter,” Premier Legault will be unable to avoid his government’s lengthy day in court.
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