I've seen a few people arguing that the Supreme Court of Canada (SCC) is obliged to rule in favour of the Provinces like Alberta (the ones that want to use the Notwithstanding Clause (NWC, S33) any old way they wish). The argument generally relies on the idea that the NWC is very broadly written and there are no explicit limits to its application in the text.
Both of those claims are true. I don't think any reasonable lawyer or judge would argue otherwise. That analysis is also a very narrow analysis and ignores the rest of The Charter, as well as the role of The Constitution as a whole in Canadian law and government.
Alberta argues that the NWC does not require any "substantive requirements" and that the courts have no role once it is invoked. The Alberta argument depends heavily on the case Ford v. Quebec (Attorney General) 1988 (Ford). However, the Ford case talks about the invocation of S33, and does not interrogate the questions that are before the court in Montreal English School Board et al v. Quebec Attorney General. The questions before the court now are much bigger in scope, and the impact of those questions is much greater.
Alberta relies heavily on the notion of "Legislative Sovereignty". As I argued back here, this concept is an unwritten convention in Canadian law, and while important, not one that is laid out in any meaningful way in The Constitution. While the legislatures are sovereign in that they are the only body which may enact laws, that doesn't extend to being able to arbitrarily rewrite laws further up the hierarchy of Canadian law. The Constitution has amending formulas specifically for that purpose.
Alberta's argument extends the conventions in Ford for using the NWC to argue that not only is there no cause for the courts to examine an invocation of the NWC, but in fact the court has no power to examine a law that is protected by the invocation of S33. While Ford does set out a set of legal requirements for the "proper legal invocation of the NWC", the case itself did not raise the questions that are now before the court in Montreal English School Board et al - those questions are much more about not merely the invocation of the NWC, but they go more fundamentally to the intended role of the NWC, and the fundamental purpose of The Charter and Constitution, as well as the role of the courts and legislatures in our system of government.
Alberta in particular seems to argue that "Legislative Sovereignty" is so broad that it actually extends well into the domain of arbitrarily ignoring The Constitution if it so chooses. The Alberta argument demands that the SCC reject what it calls "Creative Arguments" regarding the NWC. Unfortunately for Alberta, this requires demanding the SCC ignore contextual and purposeful readings of The Constitution, as well as decades of important precedent cases that guide the manner in which the courts interpret The Constitution, and in particular The Charter.
Questions Before The Court
I have examined this case in depth, and I continue to do so. Unlike in Ford, the SCC is now having to weigh multiple questions that are arguably much more important:
1. What is the context of The Charter as a whole?
Before you say "nah, that's not an issue", consider the arguments put forward by The Attorney General of Canada which argues that the NWC is limited by its context within The Constitution. Since the Constitution has an amending formula, that the NWC should not be used to arbitrarily amend The Charter through legislation. This is a huge issue, and the court has never been asked to examine The Charter (and the NWC in particular) in such a manner before.
13. The text of s. 33 must then be interpreted in light of its context and the scheme of the Charter and the Constitution as a whole. This interpretation, it is submitted, brings to light the constitutional limits on the use of s. 33.
2. Does the context of The Charter place "natural" limits on the application of the NWC?
Again, the courts haven't really been asked to engage with this question previously. Legislators have not used the powers in the NWC in the manner that Quebec, Alberta, and Saskatchewan have in the last few years. All three provinces have used the NWC in a manner which narrows rights in some political social engineering - in Quebec, it's to quash religious symbols; in Alberta and Saskatchewan, it's to quash the existence of transgender people.
3. In the Canadian hierarchy of law does the NWC allow provinces to place their laws outside the framework of the Constitution?
This is a much more insidious question to consider. If we accept the Alberta position that the NWC is an all purpose "sledgehammer", then legislation like Alberta's so-called "Sovereignty Act" suddenly moves from being ultra vires to being normal and understandable. More concerning is that it effectively undermines The Constitution and Charter as defining the legal framework of the country.
This question itself isn't directly before the courts, but it is a matter which arises from whatever ruling the court does come up with. However, the way that Alberta and Quebec are utilizing the NWC places laws written in those provinces outside the framework of Canadian law - a reality which could result a much more dangerous context for Canada where the provinces redefine themselves as highly fractured fiefdoms all with dramatically different approaches to law and rights in Canada.
Consider the prospect of a province writing its own "Charter of Rights and Freedoms" which is much narrower and more hierarchical than The Charter, and simply invoking the NWC to insulate their "unique" Charter from scrutiny. Alberta has already demonstrated that it takes a very different view of rights and law (or at least the current UCP government does), and would quite happily use the NWC to legislate away the rights of many, or make rights conditional on compliance with some religious standard (depending on who has what beliefs).
4. Does the use of the word "Guarantee" throughout The Charter have any practical weight?
Central to the wording of The Charter is the word guarantee, and it is used a dozen times throughout The Charter. I've argued previously that this is a very important aspect of the discussion around the NWC. The repeated use of the word Guarantee provides key insights into the intent of the authors of The Charter. As the intervener Egale Canada argues, the principle of Minority Protection suggests strongly that in fact there can be limits on the application of the NWC:
Just as, outside the public law context, discretionary powers may not lawfully be exercised for an improper or extraneous purpose, so too may the extraordinary power of the notwithstanding clause not be used to protect the operation of a law the very purpose of which is incompatible with the principle of minority protection — and thus with the core commitments of a liberal, democratic society.
If, as Alberta seems to desire, the NWC operates without limits, then effectively the courts will have discarded not only the principle of Minority Protection, but more seriously it will have rendered the meaning of the word guarantee moot within the Canadian Constitution. I cannot emphasize enough how this reaches beyond The Charter and into the broader world of Canadian constitutional law by effectively changing the meaning and importance of a word.
5. To what extent do provinces have the power to further constrain the rights enjoyed by their citizens, and for what reasons?
I don't see this as an explicit aspect of this case, it is an implicit one. The provinces are arguing that the NWC grants them sweeping powers in this regard, and in doing so they appear to be engaging in a serious power grab. If the NWC is allowed to function without boundaries on it, then we find ourselves in a situation where both The Charter and the courts are rendered moot.
It's this last point that makes me think the courts are unlikely to simply lob the ball to the politicians. Why would the courts choose not only to negate The Charter, but also to make themselves irrelevant in the interpretation of The Charter, and potentially The Constitution itself? Doing so would fundamentally change the role of the courts in our system of government - rendering the courts completely unable to make any kind of ruling on legislative violations of The Constitution, and opening all Canadians up to laws which violate their fundamental rights simply because some politician decides they want to.
How Do I Think The Court Will Rule?
This one is complicated, because there's the answer I'd like to see, and then there's the probability that the SCC will rule somewhat away from that ideal.
The ruling I'd like to see is for the SCC to adopt the arguments made by the Federal Attorney General fully. That would restrain provinces from many of the more abusive applications of the NWC that we have seen, if not render the NWC functionally moot.
Of course, I expect the SCC to be quite circumspect in its analysis, threading something of a line between the provincial notions of "legislative sovereignty" and creating a formula surrounding the NWC that is almost impossible to navigate.
Across the submissions to the SCC in this matter, the absolute floor ruling will be that even when the NWC has been invoked, that the courts will have the power to examine and make a declaratory ruling on the legislation itself. While provinces might argue that such cases are moot, I do not see the court taking the position that no law protected by the NWC can be inspected as that would make the courts irrelevant in the processes around rights law in Canada.
I further anticipate that the court will find that a renewal of an invocation of the NWC is really starting the process of an amendment, and therefore a renewal itself could in fact be subject to direct challenge in the courts on those grounds. This still creates significant problems for people who find themselves under attack by government laws that infringe upon their rights for at least 5 years.
As poetic as it is, the Federal argument around long lasting harm caused by the invocation of the NWC may not garner the attention from the SCC that perhaps it actually deserves:
3. ... Accordingly, any right or freedom referred to in an express declaration made under s. 33 must retain its integrity so that it can be fully exercised when the declaration expires—just as a lightbulb should shine as brightly as it did before being temporarily turned off.
5. The constitutional limits of the s. 33 power preclude it from being used to distort or annihilate the rights and freedoms guaranteed by the Charter, or to reduce them to des peaux de chagrin, that is, to shrivel them beyond recognition, if not transform them into mere legal fictions. Courts have the responsibility to ensure that these limits – which were neither considered nor rejected by this Court in Ford – are respected.
As much as I personally think this is a brilliant piece of legal reasoning, it could rely a little too heavily on the arguments around the application of the NWC being an instrument for temporary situations. I think that the SCC may well sidestep the issue somewhat, and push it back to the politicians to sort out. Given the current provincial legislative picture, this would not be a good thing.
The flip side is that the Attorney General of Canada does tie this argument back to the 1998 reference ruling on Quebec Secession, which specifically addresses matters of both rule of law, and protection of minorities. The SCC may choose to recognize that link to the Quebec Secession reference as significant and be unwilling to discard one of the court's seminal rulings in Canadian constitutional law.
A final possibility in how the SCC might rule is basically to declare the NWC to be too ambiguous in its role relative to the rest of the Constitution that there is no apparent valid test that the court can come up with that would reasonably guide its application, and therefore it is inoperative until such times as Canada's political leadership is able to agree upon a framework in which it could operate.
A ruling of this nature would basically be throwing the entire thing back into the hands of politicians, and potentially is even more destructive to Canada's constitutional system than a highly restrictive ruling such as what the Attorney General of Canada is seeking. If you will, consider the uproar over aspects of both the Meech Lake and Charlottetown accords, and then apply it to today's context where a sizeable number of premiers seem disinclined to actually engage in any kind of good faith negotiation.
How Will The Provinces React?
While I have no doubt that most provinces will be less than happy with any constraints on the NWC, it will be Alberta that makes the most noise about it. Danielle Smith has already signalled her likely reaction and avenues of response.
First, she will attack the courts, complaining that "unelected judges" are "making law". This is a reprise of the "activist judge" meme that gets dragged out every time conservatives don't like a court ruling. It's not new, nor is it particularly noteworthy. She will no doubt extend this to claim that the judges are "frustrating the will of the majority" - in spite of the fact that the legislation she has used the NWC to protect is a "concern" only to a small group of people, with most of the public unaware of the topic, much less having any real opinion on it.
Smith has already begun attacking the judiciary and the courts. Demanding more political control over judicial appointments, and complaining loudly about not being able to "direct the courts". As a citizen of Canada, the idea of a politician "directing the courts" is horrifying to me. The potential for gross miscarriages of justice is enormous when a politician decides that a particular case should be used to their advantage in getting re-elected.
On the matter of "an elected judiciary", I am firmly opposed to the concept. The idea of a judge interpreting/applying the law whilst simultaneously having to concern themselves with how "the public" might perceive what they do is simply putting the judge in a position of a direct conflict of interest between their job and their desire to keep that job. As I have learned in my own relatively casual study of law and in particular constitutional law in Canada, it is a job far more akin to that of a surgeon than it is that of an elected politician. Surgeons often do things which "the average person on the street" would see as unpalatable, but they do it because it's necessary in the moment for the patient. Likewise, judges have to read and apply law in a manner that much of the public will not fully understand. I don't "vote" on who becomes a surgeon, nor do I think it wise to vote on who gets to be a judge.
I would not be surprised to see Smith pull out her much vaunted "Alberta Sovereignty Act" and declare that Alberta will simply disregard The Charter because it infringes on her "legislative sovereignty". I have long argued that this legislation is ultra vires - the province of Alberta does not possess the power to simply declare itself exempt from a federal law that it doesn't like. There is nothing in our Constitution which permits that kind of "I turn my back on you" action. The province always has the right and resources to challenge a Federal law that infringes on its powers in the courts. That is the correct path for these issues.
Smith has already begun lobbying other Premiers to garner support to push for revisions to the current judicial appointments processes. This will create pressure on the Federal Government to open a Constitutional Amendment process, which is no doubt where provinces like Alberta would demand expanding the scope of the NWC, as well as seizing further powers for themselves in an effort to make any kind of federal oversight of the provinces even more difficult.
Addendum
I would like to draw your attention to the above quote from paragraph 40(iii) of the Attorney General of Canada's submission. It raises several very extreme, but important hypotheticals that the Attorney General of Canada wishes the court to consider in its deliberations over the NWC. These might seem extreme today, but they are important analogues to very real situations emerging today.
Let's consider the prospect of a province tabling a US-style "bathroom bill" excluding trans women from using female gendered washrooms and locker room facilities. These types of bills are very much "Jim Crow Laws" - designed to separate, segregate, and humiliate their targets. They are not just laws in any real sense of the word "just". These are laws with a particular social engineering goal in mind, and it is a goal that attacks a group on the basis of assumed characteristics rather than demonstrable characteristics.
The SCC has a very real issue to consider here. If they rule that the NWC is an unbounded tool, the question becomes "what is there to stay the hand of a government that chooses to pass any law it wishes, no matter how much damage it does to the notion of Canada as a Free and Democratic Society?".
In particular, given Alberta's recent heavy handed applications of the NWC, the SCC should be considering this type of hypothetical scenario very carefully - because it's really not that hypothetical.
