In the submission of the Attorney General of Alberta (AGA) to the Supreme Court of Canada (SCC) in English Montreal School Board, et al. v. Attorney General of Quebec, et al. there is a phrase used that I want to explore further, especially with regards to S33 (The Notwithstanding Clause) of The Charter of Rights and Freedoms (The Charter).
That phrase is "parliamentary sovereignty", and I think the Alberta submission embodies a very flawed understanding of it.
Parliamentary Sovereignty
The Alberta argument basically seems to say that the legislature is the ultimate arbiter of all things legislative, and that the courts are held solely to interpret the legislation regardless of its content.
There are two or three things I want to point out here. First, the idea that legislatures are the only authorities here is profoundly flawed as it disregards the role of the courts as a peer structure to the legislature. Further, the idea that the legislature can "do as it wishes, as long as it declares what sections of The Charter its law is violating" is also profoundly problematic when provincial legislatures start using it to create what amounts to a patchwork of rights.
Third, I wish to point out that in paragraph 22, even the Alberta government's argument was for it to be quite narrow. To wit: "... a particular provision of an Act will be valid, notwithstanding the fact that it conflicts with a specific provision of the charter of rights and freedoms" (emphasis added). This is a big deal, because it speaks to a very narrow application in very specific circumstances. Even a brief analysis of Danielle Smith's laws attacking transgender people shows that they violate multiple provisions of The Charter simultaneously, and in doing so create an environment which further increases the likelihood of the target group being subjected to additional discrimination. (I will probably write a deeper analysis of how Smith's laws violate The Charter quite broadly in another post.)
To the extent that a legislature is empowered to create law, it is "sovereign" in that domain. No other branch of government is given the power to create laws. However, such powers are not absolute, and do not exist in a vacuum. Any reasonable conceptualization of democracy requires that there exist checks and balances to ensure that an overzealous legislature does not run roughshod over the people it is elected to govern. In Canada's democracy, those checks and balances exist in the form of a hierarchy of law (which we will discuss later), and the courts.
As much as it may irritate legislators like Danielle Smith, there are in fact limits on their power, and the status of being "elected" doesn't endow them with "god-like powers" over the people that elected them. If we were to go down such a path, then we rapidly return to the notion of rule by divine right in effect (there have been bloody revolutions to overturn those monarchies ...).
Checks and Balances
In Canada, there are several "checks and balances" in place to restrain the abuse of power by a legislature. At the core is Canada's Constitution, which sets out the structures of government, as well as the division of powers, rights and responsibilities, etc., including The Charter.
Hierarchy of Law
As much as it will aggravate Danielle Smith and other Conservative legislators, there is a central component to Canada's laws - the hierarchy of laws which places the Constitution as the highest, foundational law in the country.
This means that any law written by any legislature is required to sit within the framework established in the Constitution. A legislature is not free to write a law that colours outside those lines for many reasons.
A provincial legislature is not allowed to write laws on matters outside its legitimate jurisdiction as laid out in the division of powers. For example, as laid out in S91 of the Constitution Act, 1867, criminal law is exclusively the domain of the Federal Government. The provinces have no right to create laws that modify the Criminal Code of Canada, no matter what the legislature may believe is needed.
Further, any legislature's laws MUST operate within the intended scope of The Constitution, including The Charter. Does this make the job of legislators more difficult? Absolutely it does. We need to understand that writing law is not easy, and legislators should have to work very hard to do the job right. This is especially important when one is writing laws which are clearly intended to abbreviate rights for some reason. We should not fall into the belief that S33 is a "get out of jail free" card for legislators. The limitations placed on rights in law should be carefully done so as to minimize the injury to those affected.
The Role of The Courts
As much as conservative legislators love to moan about "activist judges", and the "supremacy of elected bodies", this is little more than them complaining that they don't like the idea of their laws being tested and scrutinized.
The reality is that the courts in Canada exist as a parallel, peer structure to the legislatures. The courts have no power to 'create law', but they do have the power to tell the legislature when their laws violate the scope of the legislature's powers - including violating The Charter unnecessarily.
Conservative legislators often argue that when a court issues an order or declaration about a law that it is "the courts making law", when in fact it is the court exercising its power to provide 'Declaratory Relief' up to and including declaring a law invalid. I have never seen a court strike down a law without making a very clear explanation of its reasoning.
The Judiciary
Within the discussion of the role of the courts, I want to address a common complaint - namely that in Canada our judiciary is unelected. That is true, but it does not invalidate or render the judiciary's role as one subservient to the will of the legislature itself.
Senior courts deal with complex issues involving the interpretation of laws in context. It is no small task to apply the principles of law and precedent to individual cases that appear before the courts. This requires expertise, depth of knowledge and experience. A layperson with no legal experience might be able to get elected, but that does not mean that they possess the knowledge and experience to interpret the law properly.
An elected judge is always in the position of having to bear in mind how a given decision might affect their chances in the next election. This can lead to serious errors in interpreting law as they attempt to maximize their chances in the next election, and partisan biases can also creep in when a primary concern is the next electoral cycle.
Canada no more needs an elected judiciary than we need doctors trained by Google. The role of the judiciary in Canada's system of government requires knowledge, expertise, and impartiality far beyond what an elected system will deliver.
Should S33 Be Treated As Unfettered?
This is a very important question. If S33 is treated as an unlimited power to modify rights under The Charter, it would ultimately allow individual provincial legislatures to wholesale extinguish the rights of individuals under The Charter with impunity. At that point, not only is The Charter itself rendered functionally meaningless, the Constitution of Canada is similarly brought into question.
I appreciate that provinces are more than a bit zealous about guarding their powers on all fronts, and Alberta and Québec in particular seem unreasonably anxious to seize more powers for themselves. However, that doesn't mean that they can simply demand unconditional powers to rewrite the Constitution in whatever image they prefer for their provinces.
If, as Alberta argues, S33 is essentially an unbounded override on the rights enshrined in The Charter, then Canada ceases to have a unified system of laws and rights under The Charter. Legislators in each province can arbitrarily choose which rights are available to its citizens, and the conditions on those rights.
Let's say that Alberta decides to enact a law that says "In order to move out of a city in the province, you must first obtain a permit from the provincial government". This would be a clear violation of individual rights under S6(2) of The Charter, which reads:
(2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right
(a) to move to and take up residence in any province; and
(b) to pursue the gaining of a livelihood in any province.
Let's say that the Province then turns around and declares this law as operating Notwithstanding S6 of The Charter. Suddenly, we have a situation where a provincial government has created a system which impairs the mobility of citizens residing in cities to relocate either within the province or to move away from it. This would constitute a major violation of a very fundamental right, and places one specific demographic of the province under a different set of rules than their peers elsewhere in Canada.
Alberta's argument would have such a law stand, and moreover would even make it beyond the purview of the Courts to evaluate the law with respect to The Charter. It is possible that such a law might be found to operate within the scope of S1 of the Charter, but generally any time a province invokes S33, it's because they already know that their legislation would not survive a S1 challenge.
Further to that point, one of the fundamental principles of the Constitution and The Charter is that the rights in The Charter apply equally to all Canadians in all provinces. An unbounded application of S33 would defeat that principle.
Second, an unfettered S33 places the acts of the legislature outside the system of the courts, and would strip people of the right to challenge an unjust law before the courts. This creates a very dangerous situation for minorities where the presumed will of the majority could be used to arbitrarily strip them of fundamental rights without recourse.
Elected governments need checks and balances to hold their worst instincts at bay. We all have biases, but it is also vital that those biases are held in check by bodies with equal powers who do not have a vested interest in the muck and mire of elected politics.
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