No, The SCC Won't Rule Along The Lines Alberta Wants

 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. 

Novel Arguments For Challenging Anti-Transgender Laws In Canada

Since Alberta has decided to make itself the beachhead in bringing an "American-Style" attack on transgender people through legislation that is largely unconstitutional in Canada unless the province invokes The Notwithstanding Clause (S33), I thought I would address some potential arguments that could be used where the Notwithstanding Clause remains an "escape hatch".  

For the most part, the key parts of The Charter which anti-transgender laws violate would be S2, S7, and S15.  These all fall under the scope of S33.  For the purposes of this discussion, I am going to assume that the Supreme Court of Canada (SCC) has not expressed an opinion which substantively limits the ability of provinces to use S33.  

Argument 1:  Section 1 Extends Broadly To Encompass S33

S1 of The Charter enjoins the invocation of S33 is an extension reading of The Charter.  S1 is the so-called "reasonable limits" clause that allows the legislature to pass laws which infringe upon the rights guaranteed in the rest of The Charter, "within reason".  

The SCC Ruling On Quebec's Secularism Law Will Be More Profound Than You Think

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).  

A Rant About Media Coverage of SCC Hearings

I want to take a moment to express my disappointment in Canada's media and how they have chosen to cover this week's hearings at the Supreme Court of Canada (SCC) in the matter of Montreal English School Board, et al v. Quebec Attorney General.  This is likely the most significant constitutional case in Canada since the reference case that resulted in The Clarity Act.  

Overall, national media barely covered the case, and for the most part reduced it to a simplistic "dust up" over powers between the Federal and Provincial governments.  I wish it were so straightforward.  Some news outlets tried to frame it as "mean old Ottawa trying to restrict what provinces can do" (you can guess which ones I'm talking about).  Others talked about it in such milquetoast language that you would think the argument was over shades of the colour beige.

Did any of them bother to really explain the implications of how the Notwithstanding Clause (S33) has come to be used by the provinces?  No, they did not.  The implications are far more serious than you might expect.  If you adopt the position that Quebec and other provinces have, S33 turns into a political weapon used to strip rights from Canadians, resulting in a nation with a "patchwork" of rights defined by the provinces not by The Charter.  

The media had enormous opportunities to educate the public on how The Charter is interpreted by the courts, and the relevant cases over the last 4 decades that have been used to develop reasonable methods to interpret it.  Did they bother to do any of that?  Again, the answer is largely no.  Instead we got a small number of talking bobble-heads that have always hated The Charter spouting off and misleading people. 

Did the media take any time to explain the different positions and arguments put forth by intervenors in this case?  Not really.  I've done far deeper work on this blog trying to explain the legal arguments in layman's terms.  Sadly, the media took the coward's approach and did little more than "both sides" the matter without providing any kind of useful critical analysis.

At a time when the very fabric of rights law in Canada - and your ability to be confident that no matter where you live in Canada that you will enjoy the same rights as your fellow citizens - is under siege, Canada's media chose to treat the whole affair as if it was a relatively minor spectacle of little import.  

Canadian media:  You failed all of us this week. 

On "Novel" Readings Of The Constitution

One of the loudest criticisms of the Federal Attorney General's submission in English Montreal School Board, et al v. Quebec Attorney General is that it relies on "novel" interpretations of The Charter of Rights and Freedoms (The Charter) and the Canadian Constitution (The Constitution).  

I am going to explain why I think that line of reasoning is incorrect, and why the more "linear" interpretations that the critics are advocating for are in fact the "novel" interpretations which should be examined with suspicion.  

So, Queen Dani Doesn't Like Courts?

In a year-end interview, Premier Smith of Alberta complained that "judges aren't accountable", and elected politicians are.  

Like everything else that comes out of today's conservative politicians, this is 1 part truth, 9 parts lie.  Accountability takes many forms, and to frame elections as the only legitimate kind of accountability in our system of government is simply false.  It's convenient for her in the moment, but when she then turns around and complains that "people are abusing recall", one does have to wonder exactly how sincere she really is.  

Smith complains that "we've had 10 years of Justin Trudeau appointing judges", and that "...ideology getting into these judgements ...".  What she's really doing is misrepresenting the process through which judges are appointed in this country, as well as the nature of how judgments are written - judges actually explain their reasoning in their rulings, something that politicians seldom bother with.

Danielle Smith Just Forced Detransition On Trans Youth In Alberta

Last night, the UCP slammed down the Notwithstanding Clause to bolster its anti-transgender legislation.

I'm not going to spend my time talking about my objections to Bill 9 and Bills 26, 27, and 29.  I've talked about that extensively in this space already.  This is an abuse of power on the part of the UCP, and it is profoundly harmful legislation on many different levels. 

However, I want to bring to your attention the behaviour of the UCP in pushing Bill 9 through the legislature. 

In fairness to the author of the above words, I have anonymized the image as much as possible.  There are two things I want to emphasize because they speak to the intent of the UCP government in passing this legislation:  

First, it is beyond appalling to me that a government passing legislation which arbitrarily revokes rights guaranteed under The Charter cannot even be bothered to be present in the legislature during time allocated to debate.  All but a couple of UCP MLAs left the Chamber until the vote.  At this point, this isn't a debate, it's theatre.  The UCP is at best going through the "procedural motions" (don't get me started on the use of time allocation to limit debate), while it slams through some of the most serious legislation a government can execute.  

Besides scheduling the debate for late night hours when few people are likely to watch, and severely restricting the time available to debate this matter, the government chose to play games with the debate, so that their legislators wouldn't have to hear and process the legitimate discussion of the consequences of their actions.  Albertans should be offended. 

Then, as if to add insult to injury, the government clearly gave instructions to Legislature security personnel to "make sure nothing happened in the public gallery".  This is an act of intimidation, and one that should concern every citizen of Alberta.  The UCP has already shown itself to be shockingly thin-skinned and petty, resorting to retribution when criticized.  To engage the staff of the Legislature in being part of their political theatre and to clearly intimidate members of the public sitting in the gallery during second reading is a sign that Smith and the UCP have no respect for democracy, or the citizens of this province. 

Bill 9 and Smith's Justification For Invoking S33

 Over at the Government of Alberta website, we have the government's propaganda piece trying to justify using S33 to stomp all over the rights of transgender Albertans, their parents, and women in Alberta sport.

I will put screen captures of the whole page at the bottom ... just in case the UCP decides to disappear this link.  

As you might expect, it's largely a load of bollocks with a side order of moral panic thrown in.  Let's talk about that for a moment, because Albertans deserve far better from our government than this. 

The Charter Is Far More Complex Than This

So, over at Macleans, we have an opinion writer who thinks the Notwithstanding Clause (S33) is a "Good Thing". 

The author largely is making the argument that "too much power is concentrating in the courts", and that a tool to mitigate that is necessary, lest we have judges "legislating from the bench".  Predictably, the author eventually arrives at the language of "judicial overreach".  

Here is the problem with that kind of reasoning on the author's part:  What they consider to be "judicial overreach" is basically matters where it doesn't affect their rights directly.  Whether or not the author likes a court ruling, or a particular piece of legislation that limits rights if they are not directly affected by it.

I doubt very much that the author is directly affected by Saskatchewan's "pronoun law", nor Alberta's laws attacking transgender people (which the UCP government is expected to table legislation invoking S33 on imminently).  

The problem isn't "judicial overreach" here, it's conservative governments which have taken an overtly authoritarian stance regarding rights guaranteed under The Charter.  Smith is basically saying "people I like get their rights recognized, but because I don't like transgender people, their rights can be curtailed, or even outright erased.

Were conservative governments using S33 in rare, but reasonable ways, the author might have a point.  They aren't - they are using them to push forward legislative hobby-horse agendas that have been imported from abroad and to extinguish rights and public participation by those affected.  

Is there a reasonable case for using S33?  Yes, there are - but they are exceptionally rare, and deservedly so.  If The Charter makes writing legislation more difficult for legislators, then the application of S33 should be orders of magnitude more difficult specifically because it can be used to extinguish rights. 

The author complains about one or two rulings, but only in the most pithy of ways, making it clear that they have neither read the rulings, nor bothered to take the time to understand how precedent law influences the courts in interpreting The Charter.  

Further, unlike the US Constitution and its Bill of Rights, the Canadian Charter of Rights and Freedoms contains language which is interestingly written to be inclusive - not merely in the moment of writing, but in fact is intended to be very much a living document.  The authors of The Charter weren't so arrogant as to believe that they knew all the topic areas which it might be called upon to address in the future, so they included carefully written language that makes it absolutely clear that things can, and will, be "read in" in the future. 

Allow me to bring to your attention the wording of S15(1) of The Charter: 

15 (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

The phrase highlighted above reads "and, in particular ...".  This is probably one of the most important phrases in the entire document because what follows are a list of prohibited grounds of discrimination.  However, that phrase makes it abundantly clear that the writers of the document fully anticipated that other grounds of discrimination would be identified, and would need to be encompassed by this clause.  

What it is not, is an exclusive phrase - the list which follows is not intended to be the sole list of prohibited grounds.  

Does this make writing legislation more difficult?  For legislators like Alberta's Premier Danielle Smith, it most certainly does because much of the legislation her "base" in the UCP are demanding is clearly intended to attack rights for purely political reasons.  Whether this is the rights of transgender people, or the rights of teachers is irrelevant to me.  Curtailing rights guaranteed under The Charter should be hard.  Giving legislators too lazy to do the hard work of writing good legislation a sledgehammer is a horrible idea. 

The author would do well to remember that just as Danielle Smith likes to argue, that the legislature has supremacy (it does - it is the only body empowered with writing laws), the Constitution of Canada and The Charter itself are also the result of legislative supremacy.  So, before we allow legislators to arbitrarily curtail rights, we should absolutely insist that doing so be the hardest task a legislator faces. 

The Premier Who Would Be Queen

Danielle Smith wants to promote herself to monarch.  She's discovered that she can magick your rights away at a whim with The Notwithstanding Clause (S33).  Smith has in the last week or two started justifying her actions both invoking the ghost of Peter Lougheed, and claiming that legislators invoking S33 is "more democratic" than "unelected judges striking a law down".

It appears to me that Danielle Smith and her backers in the UCP need a bit of remedial education in the structures and features of Canada's system of government.  Let's talk about that, shall we? 

Alberta Bill 2 and The Notwithstanding Clause

So, Alberta has used S33 as part of its “Back To Work” legislation for ending the teachers strike. There will be many pixels of virtual ink spilled over this.  Much of that will go on breathlessly about how this is “unprecedented”, “shocking”, and so on.  Rest assured, none of this is shocking.  The UCP has been looking for an excuse to use S33 for quite some time - going back to Jason Kenney, if you have been paying attention.  Kenney’s Bill 1 would have become that bill - except the excuse for Bill 1 vaporized.

The UCP is being purposeful.  They started musing about S33 to buttress their anti-trans legislation a while ago, but I think they also realized that outside their base, the broader public has little appetite for such a move.  This application of it is “temporary”, and addresses events that are directly affecting families (often an easy sell for conservatives who love to spout off about family values). 

Dear Conservative Premiers: The Charter Isn't Up For Shredding

 So the 5 conservative premiers have sent a letter to Carney demanding that the Attorney General of Canada (AGC) withdraw its filing with the Supreme Court of Canada (SCC) regarding the application of The Notwithstanding Clause (S33) in The Charter of Rights and Freedoms (The Charter).  

To me, this looks like a desperation maneuver on the part of the premiers: 

What this tells us is that premiers like Alberta's Danielle Smith already know that their intentions for the use of S33 are in fact intended to erase rights entirely, and if the SCC were to adopt even partially the AGC's position, their use of S33 would come to a screeching halt. 

It is not lost on me that it is conservative premiers who are making this argument - because collectively, conservative legislators have been looking for a way to undermine The Charter for years.  Once Ontario started using it to buttress back to work legislation, they started the process of a slow boil - get people used to the idea of S33 being used on issues with relatively minor impact on them, and by the time that they start using it to erase The Charter as Danielle Smith in Alberta is trying to do using Transgender people as a target, it will be "too late" and The Charter is rendered moot. 

I explore the filings in more depth in another post.  However, the tactic of sending a letter to the Prime Minister tells us a couple of things:  

First, it's a tacit admission on the part of the premiers that their own arguments do not address the issues raised in the AGC's filing.  They can argue indefinitely about "the agreement that allowed The Charter to come into being", and the importance of Parliamentary Sovereignty, but that doesn't address the problems that the AGC's position raises (and solves). They have been outmaneuvered and they're admitting it. 

Second, their argument that this "violates the agreement around The Charter" ignores the implicit fact that the same agreement presupposed that the legislatures would act prudently with regards to S33 and not use it as a weapon against the people of Canada.  

It is this latter point which is more significant - Scott Moe and Danielle Smith wish to use S33 to extinguish the rights and validity of Transgender Canadians in their provinces.  Unlike Ontario's use of S33 to save back to work legislation from court challenges, where the situation around that legislation is clearly temporary and naturally resolves itself in time, the legislative use of S33 in Saskatchewan and Alberta addresses issues that are not temporary, and the laws themselves are intended to stand not just for 5 years, but indefinitely. That is a far different use of S33, and one without legitimate legal or cultural justification to support it. 

[Update:  Oct 8, 2025]:  The federal government just told the premiers to go pound sand.

Of Parliamentary Sovereignty and Notwithstanding Clauses

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. 

Of Structure, Hierarchy, and Balance of Power

 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.  

Deep Dive: Intervenor Arguments Regarding S33

 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: 

• The Attorney General of Canada
• EGALE
• The Attorney General of Alberta

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. 

An Argument For Limiting S33 Of The Charter

S33 (The Notwithstanding Clause) of the Canadian Charter of Rights and Freedoms (The Charter) is a "nuclear weapon" that can be used to override the guarantees in the rest of the Charter.  The original purpose and intent of it was to provide a tool that legislators could use when the conflict between the common good and individual rights was so intractable that there was no other real option other than to limit the Charter Rights of individuals in a way that exceeds the boundaries of "reasonableness" set out in S1 of the Charter.

In my lifetime, I have only seen one instance where the application of S33 has had a solid and ultimately reasonably justified application, and that is with respect to Québec's language and culture law (known at one time as Bill 101 - decades ago).  The justification for that law and the use of S33 to shield it was fairly straightforward:  The province of Québec exists as a unique linguistic and cultural island surrounded by an otherwise overwhelmingly anglophone cultural mosaic in the rest of North America.  Therefore, it was deemed "reasonable" to allow Québec to limit the use of English and other languages within the province.  Given the circumstances, I can actually agree with that reasoning even though it does place non-francophone Québecers in a more difficult situation in a number of respects.  (Note:  This does not mean that I agree with all of Québec's applications of S33, merely that the reasoning in this particular case made sense)