Canadians should know whether legislation shielded by section 33 of the Charter would otherwise be constitutional
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A cornered animal can be unpredictable. But all signs still point to the federal Liberals joining the legal battle against Quebec’s Bill 21, now that the law (in effect since 2019) has survived scrutiny by the Quebec Court of Appeal and the Supreme Court is up to bat. It would be a heck of a stain on Justin Trudeau’s legacy if he left office without his government officially challenging a law against teachers wearing hijabs, or police officers wearing turbans, or Crown attorneys wearing kippahs.
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Whether and how the federal government and the other appellants might win at the Supreme Court is another question entirely.
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Quebec’s Court of Appeal ruled that Bill 21 was comprehensively shielded by Section 33 of the Charter of Rights and Freedoms — the notwithstanding clause — which the Coalition Avenir Québec government invoked when it tabled the bill. This “pre-emptive” use of Section 33 caused much consternation among those who don’t think the clause should exist, or who think this isn’t how the notwithstanding clause was intended to be used. The latter contend (among other things) that the clause should only be invoked to override a court ruling, not to shield legislation from judicial scrutiny.
Legal observers broadly agree the next logical step is for the appellants to ask the Supreme Court to revisit its 1988 decision Ford v. Quebec, where it established the basic ground rules for how Section 33 works. Most notably, the court ruled in Ford that governments have only procedural obligations when invoking the notwithstanding clause. They do not have to justify its use on substantive grounds, or attest to believing the legislation in question is in fact constitutional, or specify which sections of the Charter they think need to be overridden.
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This makes pretty good sense: A judicial override clause loses a lot of its currency, surely, if a judge needs to sign off on its invocation.
Nevertheless, University of Windsor law professor Richard Moon suggests the Supreme Court might be asked during the Bill 21 appeal to rule that Section 33 can only be invoked after a court decision on the constitutionality of the statute in question. Or the court might be asked to rule that governments must somehow justify to a judge the use of Section 33 — in some particularly urgent practical circumstance, for example.
“There is no escaping (revisiting Ford),” University of Ottawa law professor Adam Dodek argues in an email. “I don’t think Ford stands the test of time … The only question is whether the Supreme Court will have the courage to put strong safeguards around section 33 to prevent abuses and ensure that its use is truly exceptional.”
The political fallout from such a decision would be massive; it wouldn’t just be Quebec’s premier blowing a gasket.
Moon is somewhat skeptical the court would want to go as far as restricting the use of Section 33. And there is good reason to be leery of the Supreme Court “revisiting” its own decisions: When the court’s 2015 Carter decision revisited its previous ruling on euthanasia, it breathtakingly dismissed concerns over euthanasia run amok as “theoretical,” “speculative” and “anecdotal.” Whoops.
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If the court is going to revisit its Ford decision anyway, though, there’s something it could do that would be less radical, and perhaps less politically radioactive, than what Dodek suggests. Again: Section 33 doesn’t just shield a law from other sections of the Charter, but also from judicial scrutiny. As it stands, for example, we’ll never know officially whether Bill 21 would be constitutional had Section 33 not been invoked.
It’s all but universally understood that Bill 21 would fail that test. But allowing courts to rule on a law’s constitutionality had Section 33 not been invoked would provide very useful information and context — say, the next time the National Assembly and Quebecers at large debate whether or not to extend Section 33’s application to the religious symbols law, as must be done every five years under the Charter. And while Quebec in particular might bridle at any weakening of Section 33, Premier François Legault and his aspiring replacement, Paul St-Pierre Plamondon of the Parti Québécois, would relish the chance to overrule the evil Supreme Court of Evil Canada explicitly rather than implicitly.
Moon suspects the Supreme Court might not want to start issuing rulings that have no real effect or remedy, Section 33 having rendered them moot. But again, such rulings might well not be moot five years down the line. Establishing what a government has really “done” in invoking Section 33 — is it actually violating what would otherwise be Charter rights, or not? — strikes me as a solid democratic principle that doesn’t offend the entirely valid notion that legislatures should have the last word, especially when courts drop the ball.
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