With some 60 or more intervenors in English Montreal School Board, et al. v. Attorney General of Quebec, et al. before the Supreme Court of Canada (SCC), there is a ton of material to delve into - that's far beyond this writer's time and scope of knowledge. However, there are lines of reasoning that I do wish to explore in some more depth - especially as regards the nature of S33, and how its application might be limited in the future.
In particular, I want to examine arguments put forward by:
This is, of course, far from a complete list of interesting submissions, but a representative sampling of the ones I found the most relevant to the issue of legislatures applying S33 (The Notwithstanding Clause) pre-emptively to shield legislation from scrutiny. Let's dive in.
The Attorney General of Canada's Position
Points 8 and 9 of the Attorney General of Canada's (AGC) factum lays out a 5 point set of principles regarding the application of S33. First, they lay out that even if S33 is invoked, and is deemed to be a valid use of the clause, that the law itself is still subject to review by the courts to determine its validity relative to S1 (the reasonability clause) of The Charter of Rights and Freedoms (The Charter).
Then they lay out 3 very important rules that should be applied with respect to analysis of S33. In particular, that the laws effects do not extend beyond the Charter itself; that the law cannot cause impairment of rights and freedoms beyond the period of S33 being in force (this is particularly interesting where trans youth are concerned); and that the courts retain the jurisdiction to declare that the law violates S1 of The Charter regardless of the invocation of S33.
This all sounds like legal gobbledygook to many people, I'm sure. Here's my take on it.
1). There are valid limits on the use of S33 even though on its face in The Charter it might appear that there are not.
2). The concept of irreparable harm or impairment comes into play. I've seen this enough times in other matters to come to the understanding that this is a very important aspect of the matter. In my reading of this, the consequences of the law being shielded by S33 are necessarily limited to matters that are intrinsically temporary. This is hugely important here - in other words, the rights being limited can only be limited in temporary ways, and only to the extent that the consequences of impairment are made whole upon the expiry of S33.
This second point is where legislation like Danielle Smith's ban on care for transgender youth will collapse if the SCC adopts this position. A ban on affirming care for transgender youth necessarily forces the youth through a puberty, socialization processes that are not desired by the individual. Further, it forces them to experience greater levels of distress related to their bodies, their gender role, and so on which cannot be "undone" later in life.
3). Regardless of the invocation of S33, the courts retain the jurisdiction to review the law and its impacts with respect to S1 of The Charter. This means that the invocation of S33 does not render "moot" dispute over the validity of the law itself. This is also hugely important, as conservative governments have argued repeatedly that if S33 is invoked, there is no argument for the courts to address. In other words, you always have recourse to the courts regardless of the invocation of S33.
Now, you might look at S33 and conclude that a legislature so determined could simply renew S33 indefinitely. This would seem to be true on the face of it, but in paragraph 30, the AGC addresses it as shown:
This is a big deal - because it addresses the underlying point of the rules in paragraph 9. Namely that repeatedly renewing S33 becomes - in effect - an illegal amendment to The Charter. In other words, at that point, the legislature is engaging in an amendment to the constitution outside of the authorized amending formula.
Again, referring back to Alberta's "anti-transgender" laws, this position argues that not only are those laws unconstitutional, but further to that the Alberta Government's desire to implement S33 to shield those laws may in fact already be unconstitutional on its face.
EGALE Canada's Submission
EGALE Canada (EGALE) is an organization that advocates for the 2SLGBTQ community in Canada. Since they are directly involved in challenging the anti-transgender laws in Alberta, their submission here is both relevant and contains some interesting perspective beyond that presented by the Attorney General of Canada.
EGALE's brief starts off with an interesting assertion: that there is an unwritten constitutional principle of minority protection:
At a glance, you might think "well, if it isn't written down, it's not worthy very much", and you'd be correct. So, we are fortunate to have relevant cases which acknowledge the concept being put forth here - specifically Caron v. Alberta and Reference re Secession of Québec, both of which specifically acknowledge the principle of protecting minorities.
EGALE then goes on to argue that legislation designed to attack the rights of a minority should not be permitted to operate under S33 expressly because such a law purports to modify The Charter through legislative fiat. It's important to acknowledge this point because if the government can revoke the rights of an identifiable group via legislation, then it has effectively rendered the existence of The Charter irrelevant. In other words, laws such as those Alberta seeks to impose are incompatible with the intent of Canada's Constitution and the legal framework it establishes.
Again, EGALE reminds the SCC that the Constitution sits as a framework within which legislators must operate, and it is unquestionably the job of the courts to determine when legislation falls outside the prescribed boundaries. This is important as we will see in the Alberta submission.
The Submission of The Attorney General of Alberta
As I had expected, Alberta's position starts from an old (and very flawed) conservative saw about the "supremacy of the legislators":
In essence, this approach argues that the legislators, as elected representatives are the sole arbiters of the law, and their dictates are what the courts are restricted to interpreting. This is very much the root from which many conservative politicians complain about "activist judges". The real issue is that often conservatives want legislation that outright ignores the framework of the Canadian Constitution.
If you read this fully, Alberta is essentially arguing that S33 exists so that individual provinces can turn The Charter into a patchwork document that is applied unevenly across Canada depending on how various provincial legislatures have decided it should be implemented. I think the principle of protecting minorities that EGALE cites above does a very nice job of explaining why Alberta's interpretation is enormously problematic. To simply state that a province can blithely write legislation that overrides the legal framework of Canada's Constitution, and in particular The Charter, essentially hands the province the tools to ignore the foundational hierarchy of law that starts at The Constitution - at that point, one might as well declare The Charter null and void, and the concept of Canada as a legal entity and democracy with it.
Of course, thereafter, Alberta basically says "any other interpretations of S33 should be rejected" - with really very little reasoning attached to it.
Summary Thoughts
My first thought is that the Alberta submission is surprisingly unsubtle. Like Smith's "Alberta Sovereignty Act", it's a blunt, unsophisticated reading of The Charter that basically only looks at the literal wording of the clause, and pays little attention to much of the surrounding case law developed since 1983.
Both the AGC and EGALE spend much more time reviewing existing case law, and explaining why the principles they are talking about are real and deserve to be made whole, and the application of S33 deserves to be substantially limited rather than being an all-purpose tool for ignoring The Charter when politically expedient to do so.
Of course, I make no bones about my position - S33 is enormously problematic if it is allowed to be used in the blunt, unrestricted way that Alberta is trying to achieve.
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