We've had a few weeks now since the hearings at the Supreme Court of Canada (SCC) in the matter of Montreal English School Board, et al v. Quebec Attorney General, and I expect that it will be some months before we see a ruling from the SCC.
However, the importance and scope of the ruling in this case needs to be discussed, because this case may fundamentally change our understanding of The Charter, as well as the powers of legislatures. Much has been made of the impact this case may have on the rules around the application of the Notwithstanding Clause (S33). I've written at length about it on this blog.
However, while its impact on the ability of legislature to use S33 will undoubtedly be profound, it also will have significant implications for the concept of "legislative/parliamentary sovereignty" or "legislative supremacy" (pick your term - they seem to be used somewhat interchangeably).
In particular, I want to emphasize a couple of key elements of the Attorney General of Alberta's factum in this case. The Alberta argument relies on two fundamental assertions:
1). That the Notwithstanding Clause is a broad instrument with few, or no, actual limitations on it.
2). That Legislative Sovereignty is very broad, and grants the Legislature broad powers to act entirely as it sees fit.
Both of these are hugely problematic in their own right, but they reflect a generally simplistic approach to our constitution and the structures of government.
I won't bore you with a paragraph by paragraph dissection of the Alberta position, but I do want to bring the following paragraph to your attention:
17. The purpose of s. 33 is best appreciated in the context of the Canadian constitutional order prior to the coming into force of the Constitution Act, 1982. That constitutional order was one in which parliamentary sovereignty had a central place, qualified only in limited ways, including by the division of powers.
There's a couple of points to highlight here. First, this paragraph (which occurs quite early in the factum) attempts to focus the reader on a very literal, and narrow, conceptualization of the Constitution and its relationship to topics like Parliamentary Sovereignty. As I explained in this post, Parliamentary Sovereignty is a convention in our system, not a well defined construct in the Constitution. The second aspect is that it attempts to suggest that only a literal reading of the division of powers in The Constitution matters.
While the Alberta factum does attempt to engage a "purposive" analysis of S33, it fails to engage in a broader contextual analysis, choosing instead to argue that those broader analyses should be rejected by the courts because they would infringe on legislative sovereignty.
30. Since the fundamental aim of s. 33 is to preserve the legislature’s sovereignty in respect of the scope and limits of certain Charter rights, any substantive judicial review based on those rights, or on the application of s. 1 to those rights, would be contrary to the aim of the provision.
This is in fact where the outcome of this case has much bigger implications than most people understand. Not only does the case at hand have the potential to place limits on S33, but it also could substantially impact how the courts interpret Parliamentary Sovereignty with respect to Constitutional matters.
How does this work? First, as I discussed in a previous post, the SCC could well choose to limit the application of S33 quite severely. In itself, this would be a huge deal. However, in doing so, the SCC is going to have to address the matter of Parliamentary Sovereignty and exactly how it views the construct in relation to The Constitution and the structures of our government.
Alberta in particular has been trying to make itself sit outside the hierarchies of law and government structures. Legislation such as the so-called "Alberta Sovereignty Act", as well as a very heavy-handed approach to using S33, all speak to a provincial government that clearly believes that "law is what they say it is, no less". The practical reality is that The Constitution necessarily creates constraints on the exercise of power for all parts of the systems of government. The provinces need a reminder of that reality.
The SCC has a lot to weigh here:
Is S33 in fact an unbounded tool of power?
Does the rest of the Charter and Constitution inform reasonable limits on the application of S33?
Does the concept of Legislative Sovereignty really mean that legislatures are not bound by the limitations on power that the Constitution and Charter create?
How much weight is given to the word "Guarantee" which occurs no less than a dozen times in The Charter?
How important is the principle of protecting minority rights in the application of The Charter?
I cannot emphasize enough how important this is. If S33 is, as Alberta asserts, an unbounded tool to be used whenever the legislature wishes, then not only does it render The Charter at best a "legislative suggestion" but it in fact allows provinces to put their legislative actions outside the hierarchy of law established with The Constitution at the top. The provinces have put the court in a position where either it rules in a manner that preserves the last 45 years of case law, or it renders The Charter irrelevant in Canadian law and potentially the role of courts in bounding the abuse of power by legislators.
I do not expect that the provinces will be very happy with whatever the SCC rules on this matter, because it seems unlikely to me that the SCC will rule in a manner that allows provinces to continue on the path that Alberta has been speed-walking (if not running).
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