The Specific Clause in Canadian Constitution Is a Champion of Federalism - Research Paper Example

The Notwithstanding Clause as a Champion of Federalism Introduction Section 33 of Canada’s Constitution Act 1982, also known as the notwithstanding clause, allows Parliament or provincial legislatures to make a declaration that its legislation temporarily overrides the freedom and rights contained in the Charter of Rights and Freedoms.1 Some of the fundamental rights and freedoms contained in the Charter are freedom of expression, freedom of religion, freedom of assembly, the right to due process, freedom from arbitrary searches and seizures, the right to be presumed innocent and the right to bail.2 It is therefore hardly surprising that the notwithstanding clause has been the subject of debate and controversy.3 For the most part, those in favour of the notwithstanding clause constitute a small minority position. The notwithstanding clause has generated so much dissension that it has hardly ever been used.4The result is many scholars and commentators have taken the position that the lack of use of the notwithstanding clause has rendered it virtually “unconstitutional by convention.”5 Regardless, the continued existence of the notwithstanding clause speaks to its utility. Its origins are entirely important to Canadian Federalism. Essentially the notwithstanding clause was the result of a political compromise necessitated by the need to recognize the constitutional notion of parliamentary sovereignty, the autonomous provincial paradigm, the need for patriation of the Constitution of Canada.6 Despite widespread criticism, the notwithstanding clause serves useful purposes. Not only does the clause balance parliamentary sovereignty with judicial supremacy, it provides a method by which parliament safeguards against the risk of judicial errors in the interpretation and enforcement of the fundamental rights and freedoms contained in the Charter. Indeed, had it not been for the compromise resulting in the notwithstanding clause, Canada would not have received the support of each of the Provinces and therefore would not have had the Charter after all.7 This research study analyses the notwithstanding clause and both sides of the debate. It is determined that despite its criticism, the clause is not only necessary for providing a balancing act between parliamentary sovereignty and judicial supremacy, it was also a necessary compromise for facilitating constitutional traditions and for supporting and obtaining federalism. In other words, the notwithstanding clause plays an important role in the development of Canada’s constitution and the relationship between the legislative and judicial limbs of the federal government. This study is therefore divided into three main parts. The first part of the paper discusses the origins and the use of the clause in practice and its implications. The second part of the paper discusses the arguments against the usefulness of the clause and the final part of the paper discusses the arguments in favour of the clause. The Origins and Use of the Notwithstanding Clause The Notwithstanding Clause in Context The Charter contained in the Constitution Act 1982 guarantees fundamental rights and freedoms and applies to both federal and provincial laws, policies and practices on the part of both federal and provincial government. In the event, a Canadian perceives that his or her Charter rights have been contravened, he or she may seek redress in a Canadian court.8 The notwithstanding clause contained in Section 33 of the Constitution Act 1982, essentially permits parliament and/or provincial legislatures to prevent the operation of Charter rights. The right to shield Charter rights is subject to a five year sunset clause which is renewable.9 In other words, the shield can be indefinite if at the end of the first five years, parliament or provincial legislatures decide to renew the shield for further five years.10 In terms of Western concepts of democratic constitutions, Canada retains the right of Canadian courts to set aside laws that contravene the Canadian Constitution. However, the notwithstanding clause distinguishes Canada’s constitution from other Western constitutions in that it permits federal and provincial legislatures to: Dissent from judicial rulings and set aside their effects (on a temporary but renewable basis) by passing ordinary legislation.11 In essence the notwithstanding clause is unique to Canada in that it integrates “legislative supremacy” from one constitutional framework into another: “constitutional supremacy”.12 The functioning of the notwithstanding clause is related to its origins. The clause came as a last minute compromise.13 In the course of negotiating for constitutional reform, the Federal and Provincial governments had essentially reached a stop-gap. The notwithstanding clause functioned to bring the parties to a consensus as it rendered the Charter more tolerable to Provincial government representative who perceived that Charter would strip them of too much political authority and would confer upon the Federal government far too much power.14 Ginsburg and Dixon argue further that, provincial premiers only accepted the Charter after the notwithstanding clause was attached because “for ideological and democratic reasons” they: Opposed the idea of assigning courts new power to constrain parliament, and hoped to mitigate the constraints judicial review might otherwise have on legislation.15 In addition, the notwithstanding clause promised to close the gap between the various constitutional frameworks in the Canadian provinces.16 The Notwithstanding Clause in Practice Although the notwithstanding clause has been rarely used, it has been used a bit more often than the public seems to think. For example, up to 2001, the notwithstanding clause was used to shield 16 statutes including the omnibus used in Quebec and seven shields remained in force up to 2001. The public did not respond to these shields because they were not visible and not accessible because they covered issues that did not involve the public directly and were primarily related to complex policy issues.17 According to Billingsley the unnoticed use of the notwithstanding clause renders the clause a “sleeping giant.”18 The reality is that the notwithstanding clause is an instrument that the government is at liberty to use to balance constitutional standards and principles that often conflict such as the majority rule implicit in democratic standards and the concept of respect for the rights of minorities. Should the use of the notwithstanding clause continue to proceed “unnoticed or unopposed” it has the potential to “significantly” change the country’s “constitutional and legislative landscape.”19 Canada’s Supreme Court first interpreted the notwithstanding clause in Ford v. Quebec.20 In the Ford case, the claimants filed a suit seeking a declaration that a law in Quebec requiring that signs for public display and advertisements were required to be in French only. The claimants argued that the law in question contravened Charter rights to freedom of expression and to equal non-discriminatory treatment based on the language restrictions. The Attorney General argued that the law was necessary for preserving the French language in Quebec as it was in danger of dying out.21 The court ruled that while the justification demonstrated a link between the protection of the French language and preserving Quebec’s society via visual language, it did not show that the language restriction was necessary for obtaining that goal nor did it demonstrate proportionality.22 Weinrib argues that the Supreme Court’s interpretation of the notwithstanding clause demonstrates that: The Charter lays down an intricate set of institutional arrangements. It intertwines a limited legislative override with the judicial oversight of the guarantee and limitation of rights. These elements form an integrated regime of rights protection in a democratic society.23 Essentially, the Supreme Court did not interpret the notwithstanding clause in a way that permitted Quebec’s National Assembly to indiscriminately ignore constitutional protections and was not concerned with “implications of its decision for the wider framework of Canadian constitutionalism”.24 The Supreme Court of Canada explained the limits of provincial legislatures and the Federal government and thus the constitutional implications relative to the use of the notwithstanding clause in Reference re Same-Sex Marriage. In this case, in 2003 the Governor in Council submitted a number of questions to the Supreme Court relating to the Federal government’s proposal to pass a law allowing same-sex marriages. In particular the government wanted to know whether or not the question of capacity to marry fell within the authority of Parliament alone and if so if the proposed law allowing same sex marriages was consistent with the Charter. The government also wanted to know whether or not the proposed law could bind religious officers to perform marriages between same sex couples if it was against their religion.25 In answering the questions, the Supreme Court ruled that the question of marriage was solely a matter for Parliament. The Supreme Court went on to explain that the federal system does not place limitations on what the content of the law is. All governments within the federal system is at liberty to pass whatever laws they desire provided the law is the substantive law comes within their constitutional authority. At the same time, constitutional rights constrain what laws governments can make so that both provincial and federal governments are limited.26 Ultimately, the effect of Reference: Same Sex Marriages is that the notwithstanding clause operates with the understanding that “under a constitutional supremacy, rights are intended to operate as a constraint on legislative choices.”27 At the same time, the notwithstanding clause prevents the judiciary arbitrarily blocking legislation as it wishes.28 Arguments Against the Notwithstanding Clause The main problem with the notwithstanding clause is its uneasy co-existence with the Charter. As Snow explains, since the Charter is viewed as a “rights giving” instrument, “anything that seemingly takes away those rights will be viewed with suspicion.”29 The fact that Quebec used the notwithstanding clause to systematically infringe upon Charter rights such as the inalienable right to free expression and protection from discrimination in the case of Ford with the Supreme Court striking out the Quebec law only fuels the arguments of those opposed to the notwithstanding clause.30 Whyte questions the utility of the notwithstanding clause arguing that: It is not credible to argue that removal of the override clause will produce a shift in the balance of power between political decision-makers and courts that will change the nature of our society. Constitutionalism already exacts a high price on the autonomy of electoral politics. Most Canadians see this as legitimate and fair in order to maintain the integrity of our national commitment to federalism.31 Whyte argues that the Charter itself places significant constraints on legislatures and thus the notwithstanding clause does not serve a purpose at all.32 Moreover, the Charter has not rendered politics ineffectual. The Charter has facilitated the manner in which politics shapes society. However, it is important to retain the courts’ power to protect the standards, principles and values expressed by and in the Constitution.33 Whyte apparently takes the position that the notwithstanding clause unnecessarily confers upon the legislature the authority to contravene the principles, standards and values articulated in the Constitution and implicit in the federal system. There is a concern that with the existence of the notwithstanding clause a provincial or parliamentary legislature may without justification pass a law that overrides Charter rights and freedom and that the judiciary may if it wants uphold that law. Whyte appears to believe that there is a danger that the notwithstanding clause can negatively alter the constitutional system and is more of a legitimate concern than fears that its removal will negatively alter the constitutional system. The idea of the legislature’s authority to shield a fundamental law is controversial because it raises the issue of “majoritarian tyranny”. On its face, the power to shield any constitutional law confers upon the legislature the power to determine what the constitution should mean and to permit legislatures to determine what constraints should be placed on their power.34 Ward argues further that overrides are entirely unnecessary in that they do not supervise the judiciary.35 Indeed, as we have already seen in the Ford case, the judiciary are informed and supervised by the Constitution and in particular, the Charter of Fundamental Rights and Freedoms. Albert argues that the notwithstanding clause no longer serves a useful purpose in the Canadian Constitution. It was originally intended to confer upon legislatures the final say in making public policies. Secondly, the notwithstanding clause was intended to facilitate dialogue between the courts and the legislature but has proven to do the opposite. Thirdly, the notwithstanding clause was intended to retain Parliamentary sovereignty but time and again it has become increasingly obvious that Parliamentary sovereignty cannot survive the supremacy of the fundamental rights and freedoms contained in the Charter. Moreover, the notwithstanding clause places the legislature in an unenviable position in that the legislature overrides jealously guarded Charter rights and the judiciary protects and reinforces those rights.36 It is therefore hardly surprising that the notwithstanding clause has rarely been used in ways that permit public scrutiny. Arguments in Favour of the Notwithstanding Clause Morton argues that the current and on-going problem of “excessive judicial activism” demonstrates the need for the notwithstanding clause.37 The excesses of judicial activism are manifested by the Canadian Supreme Court’s continued expansion of the “scope and frequency of policy making under the Charter”.38 There is no dialogue between the legislatures and the judiciary because the legislatures passes law representing the voice of the majority and the judiciary declares the laws unconstitutional and therefore inoperative or invalid. The judiciary have utilized the Charter to reframe policies and laws relative to health care, labour and welfare laws.39 The notwithstanding clause plays an important role in terms of its ability to curtail unnecessary judicial activism and therefore functions to regulate judicial review. It must be noted that although it is generally argued that judicial review is necessary for ensuring that the rule of law is respected and enforced and that legislatures comply with the constitution, there are some difficulties with this view. Constitutional law if typically very broad and quite often ambiguous and does not specifically address the facts of the case in a particular hearing. As a result, judges have an interpretive license and in the absence of some restraints on judicial review may very well reframe the constitution in a way that suits the judge.40 The notwithstanding clause constrains judicial review by allowing the legislature to override the Charter. According to Hogg and Bushell, the notwithstanding clause is a tool that: ...offers the competent legislative body room to advance its objectives, while at the same time respecting the requirements of the Charter as articulated by the courts.41 The Honourable Peter Lougheed points out that the intended use of the notwithstanding clause was limited to situations in which the legislature and the judiciary were at odds with respect to public policy issues. For example, in the event hospital employees were preparing to go on strike leaving patients vulnerable to harm or even death, the notwithstanding clause would be appropriately used to prevent harm of this kind and to ensure the implementation of a policy that protects public health and safety notwithstanding the Charter’s protection of the right to peaceful assembly.42 Lougheed also notes that when the notwithstanding clause was proposed, its proposal was informed by what had occurred in the US. In the US there were several instances in which it was obvious that the judiciary was not apprised of or familiar with the public’s opinion in respect of significant policy issues. For instance, the judiciary’s construction of the US Bill of Rights created significant obstacles to the abrogation of slavery and the implementation of the New Deal. In this regard, the notwithstanding clause facilitates: Effective action to be taken by legislators without the necessity of a civil war or threats of packing the courts with pro-government appointees...the notwithstanding clause allows effective political action on the part of the legislators to curb an errant court.43 Russell defends the notwithstanding clause on ground similar to those expressed by Lougheed. According to Russell, the notwithstanding clause became a part of the Charter because the prevailing view was that there was a need for a: ...parliamentary check on a fallible judiciary’s decisions on the metes and bounds of our fundamental rights and freedoms.44 Thus the notwithstanding clause was no more than a manifestation of Canada’s recognition of the need for compromise in relation to significant matters. The notwithstanding clause in this regard was a compromise between parliamentary sovereignty and the capacity for judicial supremacy.45 In other words, just as the legislatures require a system of checks and balances to safeguard against the incidents of abuse of power, the same sort of oversight is required to safeguard against the incidents of judicial abuse of power. The notwithstanding clause was therefore intended to provide some form of checks and balances on judicial power in the same way that the Charter and the Constitution supervise the legislative powers of Parliament. As Russell argues, for the most part Canadians have no difficulty with judicial discretion relative to the construction of Charter rights, the notwithstanding clause is necessary. The notwithstanding clause provides an avenue in which the federal and provincial legislatures who were duly elected can in extraordinary circumstances determine that the judicial construction of the Charter has placed unnecessary and unreasonable limitations on their ability to perform their democratic functions.46 Conclusion Having considered the arguments for and against the notwithstanding clause, the arguments in favour of the notwithstanding clause are more convincing. It makes no sense to argue against the notwithstanding clause on the grounds of fear of political tyranny when the same fears are not expressed with respect to the judiciary. The removal of the notwithstanding clause assumes that the judiciary is flawless when the excesses of judicial activism have been a serious concern for many years. Just as the fear of legislature tyranny justifies conferring the interpretative and enforcement functions of the rule of the law and the Charter on the government, the fear of judicial tyranny or excessive activism likewise justifies the continued operation of the notwithstanding clause. The notwithstanding clause provides an appropriate balance between the potential for judicial supremacy and parliamentary sovereignty. At the same time, the mere existence of the notwithstanding clause ensures that elected legislatures give expression to the public interests. 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University of New Brunswick Law Journal, Vol. 49 (2000): 169-182. Kahana, T. “The Notwithstanding Mechanism and Public Discussion: Lessons from the Ignored Practice of Section 33 of the Charter.” Canadian Public Administration, Vol. 44(3) (September 2001): 255-291. Lougheed, The Honourable Peter. “Why a Notwithstanding Clause?” Centre of Constitutional Studies, Points of View/Points De Vue, No. 6 (1998): 1-28. Massey, C. R. “The Locus of Sovereignty: Judicial Review, Legislative Supremacy, and Federalism in the Constitutional Traditions of Canada and the United States.” Duke Law Journal, Vol. 1990 (1990) 1229-1310. Morton, F.L. “Can Judicial Supremacy be Stopped?” Policy Options, (October 2003) 25-29. Murphy, R. “Same-Sex Marriage and the Same Old Constitution.” Forum Constitutionnel Vol. 14(3) (2005): 21-32. Russell, P. H. “The Notwithstanding Clause: The Charter’s Homage to Parliamentary Democracy.” Policy Options, (February 2007), 65-68. Reference re Same-Sex Marriage [2004] 3 S.C.R. 698, 2004 SCC 79. Smith, J. Federalism, Vancouver, BC: The University of British Columbia Press, 2004. Snow, D. “Notwithstanding the Override: Path Dependence, Section 33, and the Charter.” Innovations: A Journal of Politics, Vol. 8 (2008-2009), 1-15. Ward, K. (2012). “Legislative Supremacy.” Washington University Jurisprudence Review, Vol. 4 (2012): 325-348. Weinrib, L. E. “Learning to Live with the Override.” McGill Law Journal, Vol. 35(1990): 542-571. Read More