While the notwithstanding clause gives governments a unique way to override basic rights, Supreme Court judges have had a broad mandate to set out what those rights are.
For 40 years the Charter of Rights and Freedoms has been a wild ride in a leaky boat.
Canada is the only major democracy with a constitution that permits governments to override basic rights. Retired Supreme Court judge John Major calls it a “boat with a big hole in the bottom.”
Yet that uniquely Canadian boat, hesitating here, plunging ahead there and reversing course at will, continues on its tumultuous, country-changing journey.
The override – known as the notwithstanding clause – is far from the only distinctive aspect of the Charter. The document is replete with delicate balances that reflect the traditions, tradeoffs and character of Canada.
“We have a careful Charter,” said John Whyte, a legal adviser to Saskatchewan premier Allan Blakeney when it was being drafted, fought over in federal-provincial negotiations at a historic Ottawa hotel and approved.
“This is what the provinces gave us – caution at every turn, and limitation. And even then, at the Château Laurier at the 11th hour, we still wanted to override things.”
And yet the Charter was a radical break with the parliamentary supremacy of the past. Judges for the first time could strike down laws they deemed unfair limits on a right.
They weren’t shy about using this power. At a time when more than a dozen states in the U.S. still criminalized gay sex, the Supreme Court of Canada was unanimous that Alberta could not exclude gays and lesbians from the protections of its human rights law. That was in 1998, not even two decades into the Charter’s trajectory. Amid a raucous public debate, Alberta premier Ralph Klein chose not to use the notwithstanding clause. The leaky boat stayed afloat.
The Supreme Court used the Charter to defend the unpopular, especially in criminal law. On pedophiles, written materials created for personal use could not be criminalized (2001). A man who drunkenly raped a senior citizen in a wheelchair had to be allowed to use a defence of automatism, an inability to will one’s own actions (1994). A rape-shield law restricting questions about a complainant’s sexual history was thrown out because it needed broader exceptions (1991). A murder conviction was tossed because police did not have a warrant when they entered a trailer and found a suspect with the victim’s fresh blood on his shoes (1997).
Even so, the Charter became, and remained, hugely popular, a defining feature of the country.
Constitutional bills of rights, like Canada’s, limit the power of the majority acting through their elected representatives.
Mr. Blakeney, from the left, and premiers Peter Lougheed (Alberta) and Sterling Lyon (Manitoba), from the right, supported a government override as a safety valve. They feared the loss of parliamentary supremacy.
Mr. Blakeney, a New Democrat, feared that right-wing judges would strike down progressive legislation. That had happened in the U.S. in the thirties.
“Allan Blakeney went to law school in the fifties at Dalhousie,” Mr. Whyte said in an interview. “What was being taught there was the American Bill of Rights was a horrible, horrible instrument which repressed social legislation.”
Then he went off to Oxford University, where he learned that the world understood by judges was privileged beyond belief.
“I disagreed with him on this,” said Mr. Whyte, who later served as law dean at Queen’s University and deputy attorney-general of Saskatchewan. “And I often said so, and he got tired of me saying it – reasonably enough, he was the premier.”
Section 33 of the Charter says Parliament or a provincial legislature may declare that a law operates notwithstanding certain rights in the Charter. “It was seen as a straightforward assertion of the principle, as I heard Premier Lougheed explain it, ‘that elected people are more important than unelected people,’” former Supreme Court judge Ian Binnie said in an e-mail. He worked for the federal Justice Department when the Charter was being developed in 1982.
The section gives legislators the last word. But they have to renew the override every five years. So the people, in effect, have the final say.
The federal government has never used the clause. The provinces have invoked it roughly 20 times, 15 of those by Quebec. Alberta tried to use it in 2000 to block same-sex marriage, but who can marry whom turned out to be federal jurisdiction. The most controversial current use is in Quebec, where it was invoked to protect Bill 21, which forbids certain public servants from wearing hijabs and other religious symbols in the workplace.
Retired Supreme Court judge Frank Iacobucci calls the notwithstanding clause a silent reminder of the judge’s role. “I kept reminding myself I was a member of a supreme court, not a supreme legislature,” he said in an interview.
Early on, provinces were reluctant to use it. That may be changing, with uses and unenacted attempts to use it in Saskatchewan, Ontario, New Brunswick and Quebec again in the past five years. “Now,” Mr. Major said in an interview, “you can almost say there’s use, or threat of use, on almost anything you want to name. So I think you haven’t really got a constitution.”
University of Ottawa law professor Benoît Pelletier, a former Quebec MNA, says the clause is vital in keeping Canada whole. Most Quebeckers, he said, “love” the Charter, but if it did not have the override clause, the 1995 referendum on sovereignty would have gone the other way. “It serves the purpose of Canada’s unity.”
The balance between judges and legislators is built into the Charter’s very first section – the guarantee. Section 1 says the rights and freedoms are guaranteed, subject to “reasonable limits” that “can be demonstrably justified in a free and democratic society.”
“The framers wanted to emphasize that rights and freedoms are not absolute and the courts should be required to articulate the balance against society’s interests in an open and transparent process,” Mr. Binnie said.
”The benefit of Section 1 is that it imposes greater accountability on both the government and the judges to explain themselves.”
This was the section judges used to reject challenges to bans on in-person religious gatherings, or interprovincial mobility restrictions, during the pandemic. The judges deferred to government health authorities.
“In the context of this deadly and unprecedented pandemic,” Chief Justice Glenn Joyal of the Manitoba Court of Queen’s Bench wrote in one such case in October, “I have determined that this is most certainly a case where a margin of appreciation can be afforded to those making decisions quickly and in real time for the benefit of the public good and safety.”
The fears of Mr. Blakeney did not come to pass. The biggest social program of all, Medicare, including a ban on extra billing by doctors, has survived court challenges. A law criminalizing the promotion of hate against minorities passed constitutional muster, barely. The Supreme Court even declared a constitutional right to bargain collectively (2007) and to strike (2015) after rejecting both ideas in 1987.
The fears on the right, on the other hand, of judges making policy decisions have never gone away.
The concern is that the legal test created by the Supreme Court in a 1986 case is essentially cover for political opinions and biases. That test asks whether a limit is a proportionate means to an important end, in which the benefits outweigh the harms.
When federal prisoners won the right to vote in a 5-4 ruling in 2002, the dissenters accused the majority of overstepping, onto Parliament’s turf.
Mr. Iacobucci was part of the majority. “That doesn’t say my principle of mutual respect has been tossed out the window,” he said. “Remember, the court in its early Dickson days” – Brian Dickson was chief justice from 1984 to 1990 – “said you give a very wide interpretation to the rights and freedoms.”
Another values-laden issue: The court unanimously banned extraditions to face the death penalty. That was in 2001, yet another reversal of a ruling from just 10 years earlier.
“It’s the jurisprudence [body of rulings] of the Supreme Court of Canada that gives all its colour to the Canadian Charter of Rights and Freedoms,” Prof. Pelletier said. “And this jurisprudence has helped the emergence of Canadian values.”
The Charter has nuances within nuances. Its enforcement clause says judges can allow the use of illegally obtained evidence in trials. Its equality clause endorses affirmative action to assist the disadvantaged. Even the notwithstanding clause applies to some rights and not others. (Mobility, voting and official-language-minority education rights are among the exempt.)
“Obviously the framers thought that some areas of our national life should be immune from political intervention,” Mr. Binnie said.
The highly charged cases keep coming. The court is now considering whether life without parole for multiple murders is cruel and unusual punishment under the Charter.
Judges tend to move with society – sometimes a step ahead, sometimes a step behind. On gay rights, Mr. Iacobucci said the Supreme Court truly made a difference, though some members had reservations. “In one of our cases, a couple of the judges said, ‘Well, we don’t want to go ahead. Why don’t we just watch this development a little longer and do some sort of small step?’
“And I said, ‘Well, that’s equality on the instalment plan.’”
The Globe and Mail, April 16, 2022