Something that has been bugging me ever since various conservatives started yammering about (ab)using the Notwithstanding Clause (S33) in the Charter has been the phrase "Parliamentary Sovereignty".
Neither The Constitution Act, 1867 (The Constitution), nor The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK) (The Charter) make specific mention of the concept of Parliamentary Sovereignty. This is important simply because it tells us that we are dealing with a legal convention, rather than a structure within Canada's constitutional laws. That doesn't minimize the importance of it, but it tells us that the idea itself exists in practice rather than in writing.
Parliamentary Sovereignty
In seeking out a working definition of Parliamentary Sovereignty, I found the paper by Vincent Kazmierski (2010) talking about limits on Parliamentary Sovereignty. Kazmierski's paper explores the limits and boundaries associated with Parliamentary Sovereignty, ultimately finding that the power itself is very broad, but not unbounded.
The cases that Kazmierski analyzes tend to involve either the government exercising executive privilege such as not releasing documents containing cabinet secrets to the courts, or where the legislature had written retroactive legislation for some specific reason. Mostly it revolves around the discourse of the extent to which Parliamentary Sovereignty and The Rule of Law interact with each other.
This is interesting because it does not interrogate the question I think the current debate of the use of S33 raises: "Does parliamentary sovereignty extend to exempting legislators from writing laws which conform to the legal frameworks in The Constitution?"
Alberta clearly takes a very expansive view of Parliamentary Sovereignty, arguing in essence that not only does it entitle the government to legislate as it wishes, up to and including invoking S33 of The Charter, but that such invocation extinguishes the right of courts to examine the legislation protected by S33. In essence, Alberta wishes that not only should Parliamentary Sovereignty take precedence over written law, but further that Parliamentary Sovereignty can be enforced paradoxically through written law via the invocation of S33.
In its submission, The Attorney General of Canada (AGC) makes some very interesting arguments regarding the wording, implementation and limits of S33 in the broader context of The Charter.
Objections To The Role of Courts
I want to be clear, parties of any stripe can write laws that violate The Charter, or The Constitution in a variety of ways. However, it does not escape my notice that the loudest complaints often come from conservative lawmakers. It is from this corner that we hear complaints about “activist judges”, and “unelected judges” usurping the will of parliament. These phrases are designed to delegitimize the role of the courts. The conservative politicians seem to take the view that “parliament writes the laws, and the courts sole role is to determine if someone has violated them.
Reality is often far murkier than that. In a country with a functioning constitution, the courts - elected or appointed - also play the role of arbiter between the will of the elected legislature and the concerns of citizens impacted by laws that the legislature may pass. What should happen if the legislature passes laws that in one way or another break laws further up the legal hierarchy? Should citizens not have recourse to the courts?
In Canada, that has happened many times. Charter challenges have been raised over any number of laws, where complainants have argued that the legislature has been over-zealous in its laws. Sometimes those challenges die before being heard by the Supreme Court of Canada (SCC), others make it all the way to the SCC. Having read a good number of SCC rulings, the reasoning of the SCC has always been clear and reasonable no matter the issue.
Does a convention like “Parliamentary Sovereignty” truly override the scope of the courts? In my mind, these conventions serve as guides - lane markings if you will. They give a sense of where the boundaries lie. They are not absolute, nor should they be. As we are seeing in Alberta with the anti-transgender laws, legislators can act capriciously, and the resulting laws can be well beyond the scope of “reasonable limits” as S1 of The Charter establishes. Yes, I am presupposing the outcome of the current challenges of Bills 26, 27 and 29 - having read the legislation and knowing the assumptions upon which it is based, it is legislation that will not survive an Oakes test.
Closing Comments
The danger with Alberta's interpretation is that it creates an environment where a government that is hostile to the guarantees in The Charter can arbitrarily exempt itself from writing laws that operate with respect to The Charter; similarly neither S33 nor other parts of The Constitution provide an exemption from that duty. While Parliamentary Sovereignty as a concept delegates great power to the legislature and its elected members, it does not exempt the legislators from the duty to create laws that operate within the broader context of the existing framework of laws in Canada. Otherwise, the concept of Canada as a nation which is bound by The Rule of Law disappears very quickly.
Is this a “slippery slope” argument? Yes, it is. I have held this concern about the potential abuse of S33 for a long time. Up to this point, I have largely kept quiet about it because most of the applications of S33 have been for situations that are temporary, and while irritating to me do not extinguish rights wholesale. However, right wing provincial governments have been increasingly aggressive about invoking S33 in the last decade. Alberta’s anti-transgender laws are a whole other level of this, and suggest that we are further down the slope than I had previously been willing to claim.
However, if a government can arbitrarily strip a minority of basic rights, then everybody’s rights under The Charter are suddenly subject to being stripped by legislatures dominated by people with specific concrete goals that are currently held at bay by The Charter. I we place “Parliamentary Sovereignty” above the The Rule of Law, and in particular the law as it is framed relative to The Constitution of Canada, things become much more perilous for Canadians, and in particular Canadians who belong to minorities that are routinely marginalized and attacked for religious reasons.
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