Diefenbaker’s Bill of Rights and the “Counter-Majoritarian Difficulty”: The
Notwithstanding Clause and Fundamental Justice as Touchstones for the Charter Debate
Mark Carter*
I. INTRODUCTION: THE CLASS OF 1919
In April 1919 the University of Saskatchewan students’ paper, The Sheaf, published pictures of that year’s graduating class from the College of Law. One graduate’s biographer describes that 2019 CanLIIDocs 2717 edition of The Sheaf:
On facing pages...Emmett Hall and John Diefenbaker peer out keenly at the
world...[Hall] portrays an angular and bony type of solidity...From the opposite
page a young man already calling himself John G. Diefenbaker at age twenty-
three, stares unflinchingly from beneath layers of dark, wavy hair. It is said that
each wrote the other’s biographical sketch for the yearbook…Hall…conclud[ed]
with a prediction that Diefenbaker’s career at the bar will be one of honor and
success.1
Saskatchewan’s relatively small legal community has always prided itself on “punching above its weight” in relation to matters of national significance.2 The College of Law’s graduating class of
1919 certainly did its bit. One of the seven graduates—Hall—became known as the father of
Canada’s Medicare system and a Supreme Court of Canada Justice. Diefenbaker became the
* College of Law, University of Saskatchewan. 1 Dennis Gruending, Emmett Hall: Establishment Radical (Toronto: Macmillan, 1985) at 12. 2 For example, in discussing the Saskatchewan Government’s contribution to the debates and inter- governmental negotiations leading to the patriation of the Constitution in 1982, Thomson Irvine writes “[a]s usual, Saskatchewan punched above its weight and made crucial contributions to the great debates on how to bring the Constitution home” (“Saskatchewan, the Patriation of the Constitution and the Enactment of the Charter: Looking Back and Looking Forward,” (2015) 4:2 Can J Human Rights 259 at 265).
leader of the national Progressive Conservative party and the thirteenth Prime Minister of
Canada. A sense of the singular characters of these remarkable individuals, one a jurist, the other a statesman, is captured by the titles of their biographies. Hall is the Establishment Radical.3
Diefenbaker is the Rogue Tory4 and the Renegade in Power.5
On the centenary of the class of 1919’s graduation, this article considers Hall’s prediction of Diefenbaker’s success by concentrating on some particular aspects of the legacy of Prime
Minister Diefenbaker’s proudest accomplishment, the statutory Canadian Bill of Rights.6 Passed 2019 CanLIIDocs 2717 in 1960, it may be the fate of the Bill of Rights to live forever in the shadow of the constitutionally entrenched Canadian Charter of Rights and Freedoms7 which was brought
“home” to Canada as part of the Constitution Act, 1982. While the Bill of Rights pre-dated by twenty-two years the Charter’s recognition of fundamental freedoms, equality, and legal rights, with a few exceptions, judicial decisions concerning the Bill of Rights have been “mostly forgotten.”8 By contrast, the Charter and the case law that applies it are regularly “mined for inspiration by lawyers worldwide.”9 As an example of Diefenbaker’s success, therefore, the Bill of Rights is at best generally considered a necessary prelude to the Charter or, at worst, a noble
3 Gruending, supra note 1. 4 Denis Smith, Rogue Tory: The Life and Legend of John D. Diefenbaker (Toronto: MacFarlane, Walter & Ross, 1995). 5 Peter Newman, Renegade in Power: the Diefenbaker Years (Toronto: McClelland & Stewart Limited, 1963). 6 SC 1960, c 44 [Bill of Rights]. 7 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. 8 Eric M Adams, “Judicial Agency and Anxiety Under the Canadian Bill of Rights: A Constitutional History of R. v. Drybones” (2019) 39:1 NJCL 63 at 65. Adams himself, however, makes an excellent case in relation to how some judicial treatment of the Bill of Rights prefigured important approaches under the Charter and how the Bill of Rights should be understood to have altered Canada’s “constitutional imagination” (ibid at 69). The Bill of Rights has also had significant international impact. See also Paul Rishworth, “The Inevitability of Judicial Review under ‘Interpretive’ Bills of Rights: Canada’s Legacy to New Zealand and Commonwealth Constitutionalism?” in Grant Huscroft & Ian Brodie, eds, Constitutionalism in the Charter Era (Toronto: Buttersworth, 2004) 233. 9 Rishworth, ibid at 233. See also Mark Tushnet, “The Charter’s Influence Around the World” (2013) 50:3 Osgoode Hall LJ 527.
2
but failed experiment.
If the Bill of Rights itself has been left to languish, this article emphasizes how two concepts that were imported from it into the Charter live on as touchstones for the most important issue for democratic constitutional orders, such as our own, that contain entrenched bills of rights and freedoms. Famously termed “the counter-majoritarian difficulty” by Alexander
M. Bickel,10 the debate concerns whether strong rights-based judicial review of the activity of the other branches of government can be reconciled with democratic principles or whether this kind 2019 CanLIIDocs 2717 of judicial review must be considered a “deviant institution.”11 The “notwithstanding” clause in the Bill of Rights12 finds its correlate in s. 33 of the Charter13 which establishes an outpost of legislative supremacy—and, arguably, majoritarian redress—against powers of strong judicial review. On the other hand, a “poster child” for strong judicial review under the Charter has been the application by the courts of the concept of “fundamental justice” in s. 7 of the Charter,14 a term that is also a transplant from the Bill of Rights.15 In the Charter context, fundamental justice has been central to recent important Supreme Court of Canada decisions such as those finding
10 The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Indianapolis: Bobbs-Merill, 1962) at 16 [Bickel, Least Dangerous Branch]. 11 Ibid at 18. 12 Supra note 6, s 2: Every law of Canada shall, unless it is expressly declared by an Act of Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared…. 13 Supra note 7, s 33(1): Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter. 14 Ibid, s 7: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. 15 Supra note 6, s 2: [N]o law of Canada shall be construed or applied so as to…(e) deprive a person of the right to a fair hearing in accordance to the principles of fundamental justice for the determination of his rights and obligations.
3
that prohibitions on prostitution-related activity16 and assisted suicide17 are unconstitutional.
Nowhere in Canada is this debate between majoritarianism and strong judicial review more focused than in Diefenbaker’s home province18 —not to mention at his legal alma mater—where legislators are both applauded for their intention to invoke the override clause19 and cautioned against doing so.20
Accordingly, while this may not be the legacy that he would have wished or expected for his cherished Bill of Rights, a century after he graduated from the University of Saskatchewan’s 2019 CanLIIDocs 2717 College of Law, ideas and concepts that John Diefenbaker introduced into the Canadian political and legal consciousness continue to influence—and provide some of the most significant touchstones for—the national discussion about how best to respect rights and freedoms. “The
Chief”21 would doubtless be pleased.
II. THE CANADIAN BILL OF RIGHTS
A. CONTEXT AND STRUCTURE
In Canada’s Rights Revolution,22 Dominique Clément notes the “paradigm shift” of interest in
16 Canada (Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 1101 [Bedford]. 17 Carter v Canada (Attorney General), 2015 SCC 5, [2015] 1 SCR 331 [Carter]. 18 Diefenbaker was born in Neustadt, Ontario, in 1895. His family moved to Saskatchewan in 1903. See Smith, supra note 4 at 1. 19 Dwight Newman, “Premier Wall’s decision to override a messy court decision is completely proper”, National Post (9 May 2017), online:
4
human rights after the Second World War.23 Internationally, the tone was set by the United
Nations’ passage of the Universal Declaration of Human Rights24 in 1948, an instrument that was, however, preceded by a year by the introduction of The Saskatchewan Bill of Rights Act,
194725 by Tommy Douglas’s Co-operative Commonwealth Federation (“CCF”) government.
This global project of exploring methods of providing better protection for people from abuses by their own governments is important context for Canada’s bill of rights movement, but concern for defending civil liberties in Canada pre-dated the War.26 For his part, John Diefenbaker’s civil 2019 CanLIIDocs 2717 libertarian sentiments were certainly sharpened by wartime events internationally and at home by
Canada’s shameful treatment of Jehovah’s Witnesses and Japanese Canadians during that period.27 Diefenbaker, however, traced the genesis of the Bill of Rights to his days as a young lawyer in Saskatchewan when he started drafting it: “From the time I was unanimously elected leader of the Saskatchewan Conservative Party on 29 October 1936 until its realization on 10
(Vancouver: UBC Press, 2008). 23 Ibid at 17. Peter W. Hogg writes that the lack of a bill of rights in the Constitution Act, 1867 “was an omission which never seems to have been regretted until after the second world war” (Constitutional Law of Canada, 5th ed (Toronto: Thomson Carswell, 1992) (loose-leaf updated 2016) at 35-1 [Hogg, Constitutional Law]). 24 UNGA Res 217A (III), UNGAOR, 3rd Sess, Supp No 13, UN Doc A/810 (1948) 71. 25 1947, SS c 35 [Saskatchewan Bill of Rights]. In keeping with the “punching above our weight” theme, Thomson Irvine points out that the Saskatchewan Bill of Rights was “the first bill of rights in the Commonwealth since the original English Bill of Rights of 1688” (supra note 2 at 264 [footnotes omitted]). 26 Carmela Patrias characterizes the Saskatchewan Bill of Rights as “the culmination of the CCF’s long-time commitment to the defence of civil liberties and human rights.” (“Socialists, Jews, and the 1947 Saskatchewan Bill of Rights” (2006) 87:2 Can Historical Rev 266 at 268). This commitment was reflected, for example, in the Regina Manifesto, adopted as the CCF party’s program in 1933, which called for “equal treatment before the law of all residents of Canada irrespective of race, nationality or religious or political belief” (Co-operative Commonwealth Federation, “Regina Manifesto (Programme of the Cooperative Commonwealth Federation, adopted at First National Convention held at Regina, Sask., July, 1933)” (Ottawa: Mutual Press Limited, 1933)). See also Barry L Strayer, Canada’s Constitutional Revolution (Edmonton: University of Alberta Press, 2013) at 227-231; Eric M Adams, “Canada’s ‘Newer Constitutional Law’ and the Idea of Constitutional Rights” (2006) 51:3 McGill LJ 435. 27 John G Diefenbaker, One Canada: Memoirs of the Right Honourable John G. Diefenbaker, The Crusading Years 1895-1956, vol 1 (Toronto: Macmillan, 1975) at 221-224.
5
August 1960, I consistently advocated a Canadian Bill of Rights.”28 In his memoirs, Diefenbaker emphasized how much this achievement meant to him. Quoting from a CBC television interview in 1961 Diefenbaker indicated the “special pride” that he took in his administration’s “protection and preservation for all time of the individual rights and personal freedoms in the Bill of
Rights.”29
The Bill of Rights opens with a preamble which affirms a range of principles.30 The preamble is followed by four sections. Of primary concern to this discussion are the first two 2019 CanLIIDocs 2717 sections which deal most directly with rights and freedoms. Elmer Driedger (LLB, Sask. 1934), assistant to the Deputy Minister of Justice in Diefenbaker’s government, was centrally involved in developing drafts of the Bill of Rights. Driedger suggested that these two sections are part of the Bill of Right’s grand design: “Section 1 is aimed at Parliament; section 2 is aimed at the courts.”31 Section 1 “recognize[s] and declare[s]...human rights and fundamental freedoms” which “have existed and shall continue to exist [in Canada] without discrimination.”32 More specifically, s. 1(a) recognizes “the right of the individual to life, liberty, security of the person
28 John G Diefenbaker, One Canada: Memoirs of the Right Honourable John G. Diefenbaker, The Years of Achievement, 1957-1962, vol 2 (Toronto: Macmillan, 1976) at 252 [Diefenbaker, Years of Achievement]. 29 Ibid at 313. 30 Supra note 6, Preamble, paras 1-2: The Parliament of Canada, affirming that the Canadian Nation is founded upon principles that acknowledge the supremacy of God, the dignity and worth of the human person and the position of the family in a society of free men and free institutions; Affirming also that men and institutions remain free only when freedom is founded upon respect for moral and spiritual values and the rule of law. Of particular contemporary significance are the references to “the supremacy of God” and “the rule of law” which would become the only two principles in the Charter’s more concise preamble: “Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law” (supra note 7). 31 Elmer A Driedger, “The Meaning and Effect of the Canadian Bill of Rights: A Draftsman’s Point of View” (1977) 9:2 Ottawa L Rev 303 at 316 [Driedger, “Draftman’s”]. 32 Bill of Rights, supra note 6. Opining in 1968 about why s 1’s recognition and declaration was included and what, if any, its effect might be, Driedger suggested that it would assure the public and other countries that these rights and freedoms were not being established in Canada for the first time (EA Driedger, “The Canadian Bill of Rights” in OE Lang, ed, Contemporary Problems of Public Law in Canada: Essays in Honour of Dean F.C. Cronkite (Toronto: University of Toronto Press, 1968) 31 at 35).
6
and the enjoyment of property, and the right not to be deprived thereof except by due process of law.”33 Section 1(b) recognizes the right of the individual to “equality before the law and the protection of the law.”34 The fundamental freedoms of religion, speech, assembly and association, and freedom of the press are delineated in ss. 1(c) to (f).35
Driedger observed that “read by itself [s. 1] is only a declaration without real legal effect” suggesting only “that Parliament recognizes and undertakes to respect fundamental rights and freedoms. It is in the nature of a modern Magna Carta.”36 Whatever legal effect the section has 2019 CanLIIDocs 2717 depends on s. 2. The section opens with what is, in effect, an interpretive direction to the courts:37
Every law of Canada shall, unless it is expressly declared by an Act of Parliament
of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so
construed and applied as not to abrogate, abridge or infringe or to authorize the
abrogation, abridgment or infringement of any of the rights or freedoms herein
recognized and declared…38
Therefore, absent a clear intention by Parliament to override the Bill of Rights, s. 2 directs the courts and administrative bodies to interpret federal statutes in such a way as to ensure that they do not. Section 2’s reference to “rights and freedoms herein” is understood to “textually
33 Bill of Rights, supra note 6. 34 Ibid. 35 Ibid. 36 Driedger, “Draftman’s”, supra note 31 at 305. 37 In fact, the text of the Bill of Rights does not make this clear. In the first edition of The Canadian Bill of Rights, Walter Surma Tarnopolsky wrote the following: ‘Construed and applied’ are the key words in s. 2. To whom are they addressed? Who is directed to construe and apply every law of Canada which does not contain the required non obstante clause…? Presumably it is the courts and administrative officials, since Parliament cannot construe and apply its own legislation. (Toronto: Carswell, 1966) at 92 [Tarnopolsky, Bill of Rights 1st ed]. 38 Bill of Rights, supra note 6, s 2.
7
incorporat[e]”39 the otherwise free-standing values contained in ss. 1(a) to (f). The section then specifies additional protections (“and in particular, no law of Canada shall be construed or applied so as to”)40 that fall within its interpretive direction to the courts. These are procedural legal rights, with an emphasis on those that may be raised by individuals in the context of criminal proceedings. Section 2(a) protects against “arbitrary detention, imprisonment or exile”41 with the protections at the punishment phase being mentioned next in s. 2(b): no cruel and usual treatment or punishment.42 The protections then shift back to the rights at the arrest or detention 2019 CanLIIDocs 2717 phase in s. 2(c). These protections are then followed in ss. 2(d) to (g) by a range of procedural legal rights including the right to counsel,43 protection against self-crimination,44 the presumption of innocence45 and the assistance of an interpreter.46 Of particular significance to this discussion is s. 2(e) which protects people’s “right to a fair hearing in accordance with the principles of fundamental justice.”47
B. THE NOTWITHSTANDING CLAUSE IN THE BILL OF RIGHTS
The notwithstanding clause in the Bill of Rights seems to have been inspired to some significant degree by Frank Scott. This is ironic insofar as Scott—poet and McGill law professor—was
Canada’s greatest advocate of strong, constitutionally entrenched rights and freedoms in the pre-
39 Driedger, “Draftman’s”, supra note 31 at 305. 40 Bill of Rights, supra note 6, s 2. 41 Ibid. 42 Ibid. 43 Ibid, s 2(d). 44 Ibid. 45 Ibid, s 2(f). 46 Ibid, s 2(g). 47 Ibid, s 2(e) [emphasis added]. Section 3 of the Bill of Rights is what Driedger terms a “policing” provision requiring that the Minister of Justice review draft regulations and newly introduced bills for any inconsistencies with the Bill of Rights and to report any inconsistencies to the House of Commons (“Draftman’s”, supra note 30 at 306). Section 4 is the naming provision—the Canadian Bill of Rights—for the first three sections.
8
Charter era.48 Despite these civil libertarian commitments and the extent to which a non obstante clause would seem to threaten them, Christopher MacLennan indicates that Scott’s concern about the potential for Diefenbaker’s Bill of Rights to be amended or repealed by any future
Parliament led Scott to suggest an interim solution. If the Constitution was not to be amended to include a bill of rights, then the statutory version should at least include an interpretation rule stating that “[t]his Act shall not be amended by any future statute except by express mention.”49
Diefenbaker’s Minister of Justice Davie Fulton agreed that the proposed bill would be 2019 CanLIIDocs 2717 strengthened if a clause was included that would require statutes that limited guaranteed rights or freedoms to state that intention. Although the clause seems bluntly to recognize that parliamentary supremacy cannot be bound by libertarian concerns, at the same time it attempts to shame governments into respecting those interests; it was hoped that “future governments would be hesitant to announce their intention to infringe upon the human rights of Canadians.”50
48 See generally Sandra Djwa, The Politics of the Imagination: A Life of F.R. Scott (Toronto: McClelland & Stewart, 1987). 49 Christopher MacLennan, Toward the Charter: Canadians and the Demand for a National Bill of Rights, 1929-1960 (Montreal & Kingston: McGill-Queen’s University Press, 2003) at 132. 50 Ibid at 139. Another level of irony in this respect concerns Scott’s acolyte, Pierre Trudeau. As federal minister of justice in Lester Pearson’s Liberal administration, Trudeau advocated for a constitutionally entrenched bill of rights and as Prime Minister he realized his great objective. Trudeau was forced, however, to settle for “second best,” as he wrote, because he had to concede to provincial governments’ demands for a notwithstanding clause in the Charter (Pierre Elliot Trudeau, Memoirs (Toronto: McLelland & Stewart, 1993) at 324). Although it was originally recommended for the Bill of Rights by his mentor Frank Scott, Trudeau stated that the clause “violated my sense of justice: it seemed wrong that any province could decide to suspend any part of the charter” (ibid at 322). Although Trudeau’s Memoirs have relatively little to say about Frank Scott, Sandra Djwa’s biography of Scott (supra note 40) covers their relationship extensively. A particularly fascinating episode occurred in the summer of 1956 when Trudeau asked if he could join Scott on a fact-finding trip that Scott was making down the Mackenzie River in the Northwest Territories (ibid at 318). Apparently Scott was not pleased: “He did not like other people ‘horning in’ on his plans, even a younger colleague as bright and congenial as Pierre Trudeau” (ibid at 319). Ultimately, however, the trip was a success and Scott even immortalized in a poem Trudeau’s insistence on wading into some dangerous rapids. The poem begins enigmatically and ends prophetically: “Pierre, suddenly challenged, Stripped and walked into the rapids…. A man testing his strength, Against the strength of his country” (ibid at 324).
9
C. FUNDAMENTAL JUSTICE IN THE BILL OF RIGHTS
Given the “brilliant career” that lay ahead for the concept of fundamental justice in the context of s. 7 of the Charter,51 the role played by the term in the Bill of Rights seems uneventful. As indicated above, fundamental justice appears in s. 2(e) of the Bill of Rights in the context of which it is linked to a “fair hearing” which establishes a procedural framework for the concept.
In his definitive text on the Bill of Rights, Tarnopolsky equated the term with the rules of
“natural” or procedural justice as understood in the administrative law context and used the terms 2019 CanLIIDocs 2717 synonymously.52 The Supreme Court essentially accepted this procedural understanding of fundamental justice.53
D. THEMES OF CRITICAL RESPONSE TO THE BILL OF RIGHTS
Even before the Bill of Rights’ enactment, some of Canada’s most prominent civil libertarians questioned its potential effectiveness.54 Its status as a “simple”55 statute of Parliament, limiting its applicability to federal statutes56 and leaving it vulnerable to amendment or repeal at any time
51 Peter W Hogg, “The Brilliant Career of Section 7 of the Charter” (2012) 58 SCLR 195. 52 Walter Surma Tarnopolsky, The Canadian Bill of Rights, 2nd ed (Toronto: Macmillan 1978) at 264 [Tarnopolsky, Bill of Rights 2nd ed]. 53 See Duke v The Queen, [1972] SCR 917 at 923, 1972 CanLII 16: Under s. 2(e) of the Bill of Rights no law of Canada shall be construed or applied so as to deprive him of “a fair hearing in accordance with the principles of fundamental justice.” Without attempting to formulate any final definition of those words, I would take them to mean, generally, that the tribunal which adjudicates upon his rights must act fairly, in good faith, without bias and in a judicial temper, and must give to him the opportunity adequately to state his case. 54 See FR Scott, Civil Liberties and Canadian Federalism (Toronto: University of Toronto Press, 1959) at 55- 56; Bora Laskin, “An Inquiry into the Diefenbaker Bill of Rights” (1959) 37:1 Can Bar Rev 77. 55 Diefenbaker, Years of Achievement, supra note 28 at 256-257. 56 Section 5(2) of the Bill of Rights (supra note 6) defines “law of Canada” in Part I as “an Act of the Parliament of Canada enacted before or after the coming into force of this Act, any order, rule or regulation thereunder.”
10
by Parliament, was identified as a major liability.57 Although Diefenbaker would have preferred amending the British North America Act58 to include a bill of rights that would bind both levels of government and that could not be amended or repealed without further constitutional amendment, he concluded that this would be impossible: “My experience with the provincial governments indicated that they were too jealous of their jurisdiction over property and civil rights to support any amendment applicable to themselves.”59
As an ordinary federal statute, the interpretive directions that the Bill of Rights provides 2019 CanLIIDocs 2717 in relation to other federal statues “enacted before or after the coming into force of this Act”60 left the courts to wrestle with a number of quandaries. The allusion to statutes enacted before the
Bill of Rights came into force suggests tension with the presumption against the retrospective operation of statutes that was troubling to some.61 Greater questions concerned the Bill of Rights’ effect on future statutes. In this regard the Bill of Rights ran up against “the dominant characteristic”62 of the Anglo-Canadian constitutional order—the doctrine of parliamentary sovereignty or supremacy.63 A corollary of the principle that Parliament “can make or unmake any law whatever”64 is that, far from being subject to the application of earlier statutes, newer
57 Scott, supra note 54 at 55-56. 58 (UK), 30 & 31 Victoria, c 3. 59 Diefenbaker, Years of Achievement, supra note 28 at 257. In this regard, the fact that the Bill of Rights recognizes the right to “enjoyment” of property reflects the drafters’ determination not to step into the provinces’ jurisdiction over the ownership of property (ibid at 259). 60 Supra note 6, s 5(2). 61 Driedger, “Draftman’s”, supra note 31 at 307. Driedger states, however, that while there is a “presumption against the retrospective application of statues…the application of the Bill of Rights to a statute in existence when the Bill became law is not a retrospective operation” (ibid). 62 AV Dicey, Introduction to the Study of the Law of the Constitution (London: Macmillan, 1889) at 37. 63 The doctrine holds that within their spheres of jurisdiction, the federal Parliament and provincial legislative assemblies can “make or unmake any law whatever; and, further, that no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament” or in Canada, the provincial legislative assemblies (ibid at 38). 64 For Laskin “[i]t simply cannot be that an unentrenched non-constitutional enactment will be given force to limit future parliamentary action” (supra note 53 at 132).
11
ones are “deemed to impliedly repeal” inconsistent terms of earlier ones.65 Also, the Bill of
Rights’ affirmation and recognition of rights and freedoms that “have existed” before the passage of the act allowed for the conservative understanding that prior statutes reflect the way that those rights and freedoms have existed and did not, therefore, “abrogate, abridge or infringe” them.66
Finally, in the absence of an ability to declare legislation constitutionally invalid, the direction instead to “construe” and “apply” legislation so as not to offend the Bill of Rights “baffled many lawyers and judges.”67 2019 CanLIIDocs 2717 If the Canadian Bill of Rights’ success is measured by the number of times that the
Supreme Court of Canada used it to find provisions of other statutes to be inoperative,68 then the one case where the Court made such a finding ten years after the Bill came into force, R. v.
Drybones,69 is far outweighed by all the cases where it did not. R. v. Therens70 was an early
65 Hogg, Constitutional Law, supra note 23 at 12-8. This implication of the “remorseless logic of parliamentary supremacy” (ibid at 35-8) might only be overcome by assuming that the Bill of Rights has quasi-constitutional status, as the Supreme Court has averred (Bell Canada v Canadian Telephone Employees Association, 2003 SCC 36 at para 28, [2003] 1 SCR 884). Hogg argues, for example, that while Parliament cannot bind itself as to “content, substance or policy of its enactments” (Constitutional Law, supra note 23 at 12-11) it is able to impose “manner and form” requirements for future legislation. In the example at hand, Parliament is not prevented from passing laws that are inconsistent with the Bill of Rights but the form of such legislation must include a declaration that it will operate notwithstanding the Bill of Rights. Hogg concludes, therefore, that in this way “the Bill of Rights is entrenched, and...a later statute inconsistent with it is invalid unless it contains the express [notwithstanding clause]” (ibid at 35-8). In this regard see also Tarnopolsky, Bill of Rights 1st ed, supra note 37 at 95. 66 For example, in Robertson and Rosetanni v The Queen ([1963] SCR 651 at 658, 1963 CanLII 17), Justice Ritchie for the majority found significance in the extent to which the Lord’s Day Act (RSC 1952, c 171) “[h]istorically...has never been considered as an interference with the kind of ‘freedom of religion’ guaranteed by the Canadian Bill of Rights.” 67 Driedger, “Draftman’s”, supra note 31 at 308. 68 Driedger, for one, felt otherwise: It has often been said that the Bill is ineffective because the courts have not struck down any legislation—or only very little…. Effectiveness is not to be measured by legislation struck down, nor ineffectiveness by the rejection of specious arguments based on the Bill of Rights. The fact that the courts have found very few irreconcilable conflicts with the Bill of Rights...signifies, if it signifies anything, that Parliament has in the past respected fundamental rights and freedoms. Ibid at 304. 69 [1970] SCR 282, 1969 CanLII 1.
12
Charter case in which the Supreme Court considered how much guidance could be provided by the Court’s Bill of Rights jurisprudence in interpreting the meaning of “detained” under s. 10 of the Charter (very little as it turned out). In his dissenting reasons in that case, Justice Le Dain assessed the Bill of Rights’ modest legacy in a manner that suggested that it was time to clear the air in relation to an unfortunate fact that had gone unsaid for too long:
[A] court cannot, in my respectful opinion, avoid bearing in mind an evident fact
of Canadian judicial history, which must be squarely and frankly faced: that on 2019 CanLIIDocs 2717 the whole, with some notable exceptions, the courts have felt some uncertainty or
ambivalence in the application of the Canadian Bill of Rights because it did not
reflect a clear constitutional mandate to make judicial decisions having the effect
of limiting or qualifying the traditional sovereignty of Parliament.71
III. THE COUNTER-MAJORITARIAN DIFFICULTY
The “clear constitutional mandate” alluded to by Le Dain J. above is the institution of strong judicial review based on the courts’ interpretation of guaranteed rights and freedoms.72 Jeremy
Waldron defines strong judicial review in the following terms:
In a system of strong judicial review, courts have the authority to decline to apply
a statute in a particular case...or to modify the effect of a statute to make its
application conform with individual rights...Moreover, courts in this system have
the authority to establish as a matter of law that a given statute or legislative
70 [1985] 1 SCR 613, 1985 CanLII 29 [cited to CanLII]. 71 Ibid at para 48. 72 Canadian courts have been engaged in a form of strong judicial review on the basis of the division of legislative authority in Canada’s federal state since the nineteenth century.
13
provision will not be applied, so that...a law...becomes in effect a dead letter. 73
Since 1982, Canada’s constitutional order has allowed for strong judicial review of federal and provincial legislation—the focus of Professor Waldron’s definition—and the activity of the other branches of government as well,74 on the basis of that activity’s consistency with rights and freedoms. This was achieved by the Charter’s inclusion as Part I of the Constitution Act, 198275 and by s. 52 which is situated in Part VII of the Act. Section 52 establishes that “[t]he
Constitution of Canada [including the Charter] is the supreme law of Canada, and any law that is 2019 CanLIIDocs 2717 inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.”76 It is the courts that determine the issues of inconsistency. The Charter also contains its own remedy clause. Section 24(1) allows anyone whose Charter-guaranteed rights or freedoms “have been infringed or denied” to apply to “a court of competent jurisdiction to obtain” an appropriate remedy.77 Section 24(2) allows, for the exclusion of evidence in some circumstances, where that evidence was obtained in a manner that infringed or denied Charter rights or freedoms.78
This expansion of judicial review under the Charter gave Canadian purchase to what
American constitutional scholar Alexander M. Bickel termed the “the counter-majoritarian
73 Jeremy Waldron, “The Core of the Case Against Judicial Review” (2006) 115:6 Yale LJ
1346 at 1354.
74 While some early authority about the definition of “government” in s. 32 of the Charter, the applications section, suggested that the activity of the judicial branch was not reviewable (RWDSU v Dolphin Delivery Ltd, [1986] 2 SCR 573, 1986 CanLII 5 at paras 33-36), it is now established that the Charter is not directly applicable only to common law (i.e. judge-made) laws in disputes between private parties, and even that body of law will be developed by the courts in a manner that is consistent with “Charter values” (Grant v Torstar Corp, 2009 SCC 61 at para 46, [2009] 3 SCR 640). 75 Supra note 7. 76 Part VII of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982. 77 Charter, supra note 7. 78 “[I]f it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute” (ibid).
14
difficulty.”79 The pillar of Anglo-Canadian constitutionalism mentioned above—legislative supremacy—is closely associated with majoritarianism which, in turn, informs important themes of democratic theory. Generally, definitions of democracy80 emphasize rule by the majority through the actions of their elected representatives and the legislative process.81 Insofar as the institution of judicial review allows unelected judges to second-guess the will of the majority as manifest in the work of the elected branches of government and their officials, and to declare laws invalid,82 it emerges as a “deviant institution”83 in democratic terms. As such, in Bickel’s 2019 CanLIIDocs 2717 view, the courts are encouraged where possible to minimize the exercise of this “extraordinary power”84 by employing techniques, “passive virtues,”85 that leave issues of constitutional principle “in abeyance.”86 Bickel quotes Justice Brandeis with approval: “The most important
79 Least Dangerous Branch, supra note 10. From a Canadian perspective, our unelected Senate poses an additional and perhaps more significant counter-majoritarian difficulty. See, for example, Andrew Coyne, “Our unelected Senate doesn’t even have to actually defeat a bill to kill it”, National Post (26 June 2019), online:
15
thing we do...is not doing.”87 Similarly, a corollary of Waldron’s “case against judicial review”88 is that, where a constitutional framework provides for the institution, it should nonetheless be exercised with restraint. In Waldron’s view, in well-functioning democracies ordinary legislative processes resolve disputes about rights at least as thoughtfully and effectively as do the courts.89
Ronald Dworkin has provided the most influential theme of response to the counter- majoritarian difficulty. Dworkin argues that majoritarianism is important to, but does not exhaust, the best understanding of democracy.90 Democracy includes respect for individual rights 2019 CanLIIDocs 2717 and freedoms, a fact that is institutionalized when those values are constitutionally entrenched. In some circumstances these values must be allowed to “trump” the will of the majority.91
Furthermore, the ability to interpret these constitutional guarantees which limit government activity is a distinctly legal (non-political) skill and function which, in the words of Justice
Lamer, is “in the inherent domain of the judiciary.”92
In substance if not in name, the counter-majoritarian difficulty was not lost on federal and provincial politicians during the negotiations that led to the entrenchment of the Charter.
Charles-Maxime Panaccio observes that “[s]ometimes in eerie fashion the public debate which
87 Ibid at 71. More recently, the work of Cas Sunstein has emphasized the virtues of judicial minimalism. See e.g. “Incompletely Theorized Agreements” (1995) 108:7 Harv L Rev 1733; One Case at a Time: Judicial Minimalism on the Supreme Court (Cambridge, Mass: Harvard University Press, 1999). 88 Supra note 73. 89 Ibid. 90 Ronald Dworkin, Taking Rights Seriously (Cambridge, Mass: Harvard University Press, 1977) at xi [Dworkin, Taking Rights]. In relation to the majoritarian character of democracy Dworkin writes the following: In the United States, however, most people who assume that the majoritarian premise states the ultimate definition of and justification for democracy nevertheless accept that on some occasions the will of the majority should not govern. They agree that the majority should not always be the final judge of when its own power should be limited to protect individual rights, and they accept that at least some of the Supreme Court’s decisions that overturned popular legislation...were right. Freedom’s Law: The Moral Reading of the American Constitution (Cambridge Mass: Harvard University Press, 1996) at 16. 91 Dworkin, Taking Rights, ibid at xi. 92 Re B.C. Motor Vehicle Act, [1985] 2 SCR 486 at 503, 1985 CanLII 81 at para 31, Lamer J [BCMVA]; see Dworkin, Taking Rights, supra note 90 at 14-45.
16
then took place in Canada parallels that which is still going on among well-known academics like Jeremy Waldron [and] Ronald Dworkin.”93 In the result, the final version of the Charter made concessions to both sides of the debate with terms that were borrowed from the Bill of
Rights. One of these concessions was intentional, and one was not. The “notwithstanding” clause in s. 33 represents a more or less absolute defence of majoritarianism against the threat of strong judicial review. On the other hand, “fundamental justice” in s. 7 of the Charter has facilitated what are arguably the most significant examples of strong judicial review since 1982. This is the 2019 CanLIIDocs 2717 case despite the fact that the term was specifically selected so as to minimize the scope of judicial review under the Charter, just as it had done under the Bill of Rights.
IV. THE CHARTER’S NOTWITHSTANDING CLAUSE AND THE BILL OF RIGHTS
LEGACY
The strength of judicial review under the Charter is compromised by both ss. 1 and 33. Section 1 of the Charter allows legislation and other forms of government activity that have been found to infringe Charter guarantees to be upheld as reasonable limits on those values.94 Under s. 1 analyses however, the courts continue to have the last word in relation to whether arguments in favour of upholding laws meet the standards of “demonstrable justification” pursuant to the judge-made framework for doing so.95 The more significant outpost for legislative supremacy— and, therefore, the more direct response to the counter-majoritarian difficulty—is s. 33 of the
Charter. The section reads as follows: “Parliament or the legislature of a province may expressly
93 “Professor Waldron Goes to Canada (One More Time): The Canadian Charter and the Counter- Majoritarian Difficulty” (2010) 39:1 Comm L World Rev 100 at 101. 94 Section 1 reads as follows: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” (supra note 7). 95 R v Oakes, [1986] 1 SCR 103, 1986 CanLII 46 [Oakes].
17
declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to
15 of this Charter.”96 Sections 2 and 7 to 15 include the “classic” liberal rights and freedoms that the Charter guarantees: the fundamental freedoms, legal rights, and equality provisions.97 The five-year time limit of such legislation98 is renewable indefinitely.99
While it has been characterized as an “unprecedented” provision without parallel in other domestic and international bills of rights,100 it will be noted that the wording of s. 33 closely 2019 CanLIIDocs 2717 resembles the opening terms of s. 2 of the Bill of Rights. Section 2 directs that any act of
Parliament will be “construed and applied” in a manner that is consistent with the rights and freedoms that the Bill of Rights recognizes “unless it is expressly declared by an Act of
Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights.”101 This is not a coincidence. As Assistant Deputy Minister of Justice in the Trudeau administration,
Barry Strayer (LL.B. Sask. 1955) was one of the drafters of the Charter. Strayer credits Premier
Peter Lougheed of Alberta with suggesting the inclusion of a notwithstanding clause in the
96 Charter, supra note 7. 97 Ibid. These are “classic” protections at least insofar as they contrast with Charter guarantees that are distinct matters of Canadian historical and political exigency and which are not subject to the override clause: French and English language rights and minority French and English language education protections in ss. 16-23. Democratic rights (ss. 3-5) and mobility rights (s. 6) are also protected from the override clause (ibid). With respect to language rights, Allan Blakeney, Premier of Saskatchewan during the patriation negotiations, writes the following: I asked [Pierre Trudeau] why the language rights provisions were in the Charter, because language rights are not human rights. It is no more a human right to speak English than, say, Spanish...I suggested that he was embedding them in the Charter because it was easier to argue for a charter than it was to argue for free-standing language rights. He readily agreed. An Honourable Calling: Political Memoirs (Toronto: University of Toronto Press, 2008) at 176. 98 Charter, supra note 7, s 33(3). 99 Ibid, s 33(4). 100 Marc-André Roy & Laurence Brosseau, “The Notwithstanding Clause of the Charter (Background Paper)” (2018) at 2, online (pdf): Library of Parliament Research Publications:
18
Charter as a way of gaining provincial support for the proposal following an “inconclusive” First
Ministers’ Conference in 1979 at which drafts of the Charter had been considered. Strayer writes that “it appeared [Lougheed] had borrowed the idea from section 2 of the Canadian Bill of
Rights, 1960.”102 Premier Lougheed’s suggested adoption of the Bill of Rights’ non obstante clause became, in Janet L. Hiebert’s words, a crucial part of a “provincial resistance strategy” during the late stages of the patriation negotiations.103 Once the premiers had resigned themselves to the imminence of the Charter “the notwithstanding clause was considered the best 2019 CanLIIDocs 2717 option available to moderate the impact of judicial review on legislative decision-making.” 104 To return to Strayer’s first-hand perspective on the negotiations, “[a]s is now well-known, this device became the deal-maker in November 1981 when nine provinces agreed to have a Charter if it contained the ‘notwithstanding clause’ now found in section 33 of the document.”105
V. FUNDAMENTAL JUSTICE IN THE CHARTER AND THE BILL OF RIGHTS
LEGACY
Transplanting the notwithstanding clause from the Bill of Rights into the Charter has unfolded, essentially, “as advertised.” When invoked, s. 33 operates in the Charter’s constitutional context106 in the same way that its parent provision was expected to operate under the Bill of
Rights.107 By contrast—and arguably to the benefit of stronger rights protections—the
102 Supra note 25 at 113-114. 103 “The Notwithstanding Clause: Why Non-use Does Not Necessarily Equate with Abiding by Judicial Norms”, in Peter Oliver, Patrick Macklem & Nathalie Des Rosiers, eds, The Oxford Handbook of the Canadian Constitution (Oxford: Oxford University Press, 2017) 695 at 697. 104 Ibid at 697-698. 105 Supra note 26 at 113-114. 106 See Part VI-A “The New Season of the Override”, below. 107 See e.g. the Public Order (Temporary Measures) Act, 1970, SC 1970-71-72, c 2, s 12(1): “It is hereby declared that this act shall operate notwithstanding the Canadian Bill of Rights.”
19
importation of fundamental justice from the Bill of Rights into s. 7 of the Charter was an example of false advertising.
Section 7 of the Charter guarantees that “[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”108 Strayer confirms that its wording is closely drawn from s.
1(a) of the Canadian Bill of Rights.109 Section 1(a), however, extends beyond the right to life, liberty and security of the person to include the right to enjoyment of property as well. Most 2019 CanLIIDocs 2717 significantly for the present discussion, however, is that under s. 1(a) the individual may be deprived of these rights by “due process of law” rather than by “the principles of fundamental justice” which qualify the s. 7 guarantees. Strayer explains that “due process” was specifically rejected as the qualifier for s. 7 of the Charter in order to restrict the scope of judicial review in
Canada to the procedural fairness of government activity that deprives individuals of s. 7 rights, rather than judging the substantive fairness, “the wisdom,”110 of this activity as well. The fear was that were the term “due process” to be used in s. 7 as it is in the Fifth Amendment of the
American Constitution, then Canadian courts would follow the American Supreme Court’s example and identify for themselves the jurisdiction to engage in “substantive due process” review. During the “Lochner era”111 this form of substantive review led the United States
Supreme Court to invalidate legislative initiatives aimed at progressive goals such as improving social and working conditions.112 In searching for a qualifying term for s. 7 guarantees that
108 Supra note 7. 109 Supra note 26 at 256. 110 BCMVA, supra note 92 at para 19, Lamer J. 111 Lochner v New York, 198 US 45 (1905). 112 Strayer, supra note 26 at 256. The possibility of Canadian courts “going substantive” with their due process jurisdiction was a matter of concern under the Bill of Rights as well. “In interpreting the due process clause in s. 1(a)...our judiciary cannot fail to be affected by the American experience. The
20
promised to contain judicial review to procedural fairness in a way that due process had failed to do in the United States, fundamental justice recommended itself. As discussed above, in the context of s. 2(e) of the Bill of Rights fundamental justice had a well-established and judicially recognized procedural focus.
Little did Diefenbaker know that when the drafters of his Bill of Rights included fundamental justice in s. 2(e) they were providing the Charter with, as Alan Blakeney suggested, an acorn that would quickly turn into an oak.113 In Re B.C. Motor Vehicle Act114 the Supreme 2019 CanLIIDocs 2717 Court of Canada held that an absolute liability offence of driving while one’s licence is suspended, when combined with a potential prison sentence, which infringes the right to liberty in s. 7, is not in accordance with the principles of fundamental justice. In arriving at this conclusion Lamer J. understood that the basis for his decision was not one of the procedural principles that are certainly part of the concept of the fundamental justice,115 but rather a substantive principle of morality that is offended by “a law that has the potential to convict a person who has not really done anything wrong.”116 In the interests of interpreting the Charter in a manner that provides people with “the full benefit of [its] protection,”117 Lamer J. recognized that giving substantive content to the concept of fundamental justice provides greater protection for the interests that s. 7 guarantees than would be the case were fundamental justice to be
unfortunate history of substantive due process in the United States would of itself discourage the same interpretation here” (Tarnopolsky, Bill of Rights 2nd ed, supra note 52 at 227). 113 Supra note 97 at 199-203. Blakeney was discussing the scope of review that the Supreme Court has claimed for itself based on the term “principles of fundamental justice” in s. 7 of the Charter and, in particular, the Court’s invalidation of Quebec’s restrictions on access to private health insurance for otherwise publicly funded medical procedures in Chaoulli v Quebec (Attorney General), (2005 SCC 35, [2005] 1 SCR 791 [Chaoulli]). 114 Supra note 92. 115 Ibid at para 65. 116 Ibid at para 1. 117 R v Big M Drug Mart Ltd, [1985] 1 SCR 295, 1985 CanLII 69 at para 117, Dickson J (as he then was) quoted in BCMVA, supra note 92 at para 21.
21
restricted to procedural principles.118 As to the intention of the drafters of s. 7 as reflected in the
Minutes of the Special Joint Committee on the Constitution,119 Lamer J. rejected the argument that the views of “a few individual public servants”120—including Barry Stayer—and the federal
Minister of Justice, Jean Chrétien,121 could dictate the meaning of the constitutional term.122
Neither was the procedural character of the term “fundamental justice” in the Bill of
Rights, “persuasive or of any great force.”123 In this regard Lamer J. stated the following:
In section 2(e) of the Canadian Bill of Rights, the words ‘principles of 2019 CanLIIDocs 2717 fundamental justice’ were placed explicitly in the context of, and qualify a
‘right to a fair hearing’. Section 7 of the Charter does not create the same
context. In section 7, the words ‘principles of fundamental justice’ are placed in
the context of, and qualify much more fundamental rights, the ‘right to life,
liberty and security of the person’. The distinction is important.124
Important enough, indeed, that the Court could conclude that for constitutional purposes, the concept of fundamental justice was “shrouded in ambiguity.”125 Going forward, the courts would look to the “basic tenets of our legal system”126 for the procedural and substantive principles that characterize fundamental justice, allowing the concept to “take on concrete meaning” on a case by case basis “as the courts address alleged violations of s. 7.”127
118 BCMVA, supra note 92 at para 27. 119 Ibid at paras 35-37. 120 Ibid at para 51. 121 Ibid at para 37. 122 Ibid at para 52. 123 Ibid at para 60. 124 Ibid at para 58. 125 Ibid at para 60. 126 Ibid at para 31. 127 Ibid at para 67.
22
VI. THE NOTWITHSTANDING CLAUSE AND FUNDAMENTAL JUSTICE:
TOUCHSTONES FOR THE DEBATE OVER THE CHARTER’S COUNTER-
MAJORITARIAN DIFFICULTY
As I have suggested throughout this article, the notwithstanding clause in s. 33 of the Charter addresses the anti-majoritarian difficulty—such as it may be—by providing an outpost of legislative supremacy and, therefore, majoritarian redress against strong judicial review based on many of the Charter’s most significant sections. On the other hand, the concept of fundamental 2019 CanLIIDocs 2717 justice is one of the most significant tools for the form of strong judicial that gives rise to the difficulty in the first place. These provisions, therefore, represent touchstones and maintain an important tension for the irresolvable debate about how the institution of strong, rights-based judicial review can be reconciled with democratic principles.
A. THE NEW SEASON OF THE OVERRIDE
We may be at an important moment in relation to the notwithstanding clause. Tsvi Kahana makes the interesting point that, as things stood in 2001, most Canadians would have been surprised to find out that, in addition to its omnibus invocation by Quebec on two occasions, s.
33 had been invoked as many as sixteen specific times by four governments (Yukon,
Saskatchewan, Quebec and Alberta).128 It is safe to say that throughout most of the last decade things have been fairly quiet on the s. 33 front except insofar that its proposed repeal and
128 “The Notwithstanding Mechanism and Public Discussion: Lessons from the Ignored Practice of Section 33 of the Charter” (2001) 44:3 Can Public Administration 255 at 256. Kahana argues that people were likely unaware of these uses of s 33 because they were preemptive in nature, used in order to prevent judicial review rather than in reaction to a judicial decisions invalidating legislation on the basis of the Charter. See also Hiebert, supra note 103.
23
ongoing relevance has been the subject of political129 and academic debate.130 Suddenly, however, we seem to have entered a new “season of the override.” The government of Quebec has recently included a blanket override clause131 in An Act respecting the laicity of the State132 which received royal assent on June 16, 2019. The override is designed to prevent Charter challenges to a ban on religious clothing for public sector workers. In 2018, the Government of
Ontario introduced the Efficient Local Government Act, 2018133 that also included blanket override clauses in a number of provincial statutes relating to municipal legislation.134 The 2019 CanLIIDocs 2717 legislation was designed to allow the government to proceed with a reduction of Toronto municipal electoral districts notwithstanding a lower court ruling that legislation allowing for this would be an unreasonable infringement of freedom of expression under the Charter.135 Ontario did not, however, advance the legislation past introduction after the release of an expedited Court of Appeal decision that stayed the lower court decision.136
Finally, in Diefenbaker’s home province, The School Choice Protection Act137 received
Royal Assent in 2018. The act amends The Education Act, 1995138 so that it will operate notwithstanding ss. 2 and 15 of the Charter139 but it is not yet in force pending an appeal of the
129 See e.g. “Paul Martin’s desperate notwithstanding ploy”, The Globe and Mail (13 January 2006), online:
24
Court of Queen’s Bench decision in Good Spirit School Division No. 204 v. Christ the Teacher
Roman Catholic Separate School Division No. 212140 from 2017. In Saskatchewan, provisions of the Constitution Act, 1867141 and The Saskatchewan Act142 operate in concert to guarantee government funding for Roman Catholic or Protestant denominational schools in circumstances where adherents of those faiths are a minority within a school district.143 These “separate” denominational schools in Saskatchewan are Roman Catholic.144 In Good Spirit Justice Layh of the Court of Queen’s Bench held that the provincial government’s practice of funding non- 2019 CanLIIDocs 2717 minority faith students’ attendance at separate denominational schools is an unreasonable infringement of freedom of religion and religious equality as guaranteed, respectively, by ss. 2(a) and 15(1) of the Charter.145 Should the Court of Appeal uphold the lower court’s decision, then presumably the SCPA will be brought into force to allow the province to maintain the existing denominational school funding practices, as it has been allowed to do on an interim basis since the Good Spirit ruling. Significantly, in contrast to the situations in Quebec146 and Ontario147
140 2017 SKQB 109, [2017] 9 WWR 673 [Good Spirit]. 141 (UK), 30 & 31 Vict, c 3, s 93. 142 SC 1905, c 42, s 17. 143 These guarantees are implemented by The Education Act, 1995, supra note 138, ss 49, 53, 85, 87, 310. 144 Until recently, the exception was the Englefeld Protestant Separate School which, however, merged in 2018 with the Public Horizon School Division. 145 Supra note 140 at para 474. 146 Philip Authier, “Liberals opt for traditional position against ban on religious symbols”, Montreal Gazette (1 February 2019), online: 25 where opposition parties resisted the invocation of the override clause, the Saskatchewan Party’s invocation of s. 33 was generally supported by the New Democratic Party opposition.148 This suggests, then, that all invocations of the notwithstanding clause may not be equal. In relation to long-standing convenient practices which, in the Charter’s new light, are found to offend the Constitution, political actors may calculate that invoking s. 33 will not always be perceived as the “nuclear option,”149 with all of the political risks that would otherwise attend its employment. 2019 CanLIIDocs 2717 B. FUNDAMENTAL JUSTICE The Supreme Court of Canada’s decision in BCMVA about the nature of the concept of fundamental justice launched Canadian courts on an extraordinary journey of engagement in both procedural and substantive review of legislative and other forms of government activity, resulting in decisions many of which have been at the forefront of public debate, interest, and concern. Early decisions included declaring of no force and effect the constructive murder provisions150 and the abortion provisions151 in the Criminal Code.152 In more recent applications mpp-nathalie-des-rosiers-has-stern-parting-words-doug-ford>, archived: Ruling”, CBC News (1 May 2017), online: 1.4093835>, archived: 149 Aaron Hutchins, “Why Doug Ford Went Straight to the ‘Nuclear Option’ on Toronto City Council: Defying the Courts By Using the Notwithstanding Clause Is a Move Straight Out of the New Populist Playbook— and Ford Has Hinted He’ll Do It Again”, Maclean’s (10 September 2018), online: 26 of fundamental justice, the Supreme Court has declared laws against prostitution-related activity153 and assisted suicide154 to be invalid. Section 7’s reach—and therefore the significance of fundamental justice—has also extended well beyond the criminal law context where it might have been expected to stay given that it introduces the “Legal Rights” part of the Charter, which contains rights that are otherwise specific to criminal law proceedings. The Supreme Court has considered the requirements of fundamental justice in the administrative context,155 child apprehension hearings,156 and even health care policy.157 The courts engage in strong judicial 2019 CanLIIDocs 2717 review to enforce all of the Charter’s guarantees. That being said, the particularly significant nature of s. 7 rights—life, liberty and security of the person—and the especially enigmatic quality of the concept of “fundamental justice”—once it had been untethered from its procedural mooring in the Bill of Rights—ensure that many s. 7 decisions raise the most interesting and challenging questions about strong judicial review and, therefore, the counter-majoritarian difficulty. Section 7 of the Charter and the concept of fundamental justice may be a test for the suggestion that I made above, that there could be a sliding scale in relation to public and political reaction to the invocation of the notwithstanding clause. As Hamish Stewart points out, technically constitutional challenges of legislation based on s. 7 of the Charter would be prevented by Quebec’s omnibus override clauses while they were in effect and the blanket s. 33 153 Bedford, supra note 16. 154 Carter, supra note 17. 155 Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 SCR 307. 156 New Brunswick (Minister of Health and Community Services) v G(J), [1999] 3 SCR 46, 1999 CanLII 653, establishing a right to counsel in certain circumstances for parents in the context of child apprehension proceedings. 157 Chaoulli, supra note 113. 27 provisions contained in other pieces of provincial legislation.158 Stewart observes, however, that to date “it appears that no Canadian legislature has ever enacted a section 33 override directed at preserving a specific violation of section 7.”159 This may not be a coincidence. As rare as notwithstanding clauses may be, s. 7 might still be assumed to be the “last bastion” to be subject to a direct override in response by a government to a judicial decision. Except insofar as they may involve such things as regulatory offences, some of which have fallen within s. 7’s ambit and which the courts may be increasing prepared to uphold as reasonable limits under s. 1,160 2019 CanLIIDocs 2717 many s. 7 decisions that dominate the public agenda do so because of the significance of the laws in question and the significance of the values that s. 7 protects. Some close variants of life, liberty and security of the person have been at the heart of the modern human rights project since the Enlightenment.161 Accordingly, any government’s attempt to override directly these protections and to reject the courts’ interpretation of fundamental justice, at least in relation to non-regulatory laws, could be expected to generate the most significant debate in relation to the counter-majoritarian difficulty that we have had to date. If Diefenbaker’s Bill of Rights is not responsible for this inevitability, it certainly played an important role and provided the terms for the debates to come. VII. CONCLUSION: THE DIEF IS STILL THE CHIEF 158 Hamish Stewart, Fundamental Justice: Section 7 of the Canadian Charter of Rights and Freedoms (Toronto: Irwin, 2012) at 12. 159 Ibid at 13. 160 R v Michaud, 2015 ONCA 585, 127 OR (3d) 81, leave to appeal to SCC refused, 36706 (5 May 2016). On the relationship between s. 1 and s. 7, see Mark Carter, “Sections 7 and 1 of the Charter after Bedford, Carter, and Smith: Different Questions, Same Answers?” (2017) 64:1-2 Crim LQ 108. 161 See Mark Carter, “Fundamental Justice in Section 7 of the Charter: A Human Rights Interpretation” (2003) 52 UNBLJ 243; Mark Carter, “Fundamental Justice” in Mathew Harrington, ed, The Court and The Constitution: A 150-Year Retrospective (Toronto: LexisNexis 2017) 259. 28 “In counterfactual history nothing is certain.”162 So concludes an article by Robert Dallek, about what might have been achieved during the tragically absent second term of John F. Kennedy, a president with whom John Diefenbaker shared a famously terrible relationship.163 In keeping with Dallek’s observation, although “nothing is certain,” this article has argued that, if it would be overstating the case to say that without the notwithstanding clause in Diefenbaker’s Bill of Rights there would be no Charter of rights, then it is at least certain that the provision of Diefenbaker’s act inspired the “deal-maker” (as Strayer termed it) that allowed the constitutional 2019 CanLIIDocs 2717 patriation project, with an entrenched Charter, to succeed. Furthermore, ensconced in s. 33 of the Charter, the notwithstanding clause has established itself as the most significant response to the counter-majoritarian difficulty that attends the institution of strong judicial review based on rights and freedoms in liberal democratic states in general, and Canada in particular. In contrast to the way that the notwithstanding clause, as imported from the Bill of Rights, has come to operate more or less as expected in the Charter context, nothing could be farther from the case with fundamental justice. A term that was specifically chosen in order to bring to the Charter the clearly procedural character that it had in the Bill of Rights has become the basis for the most significant examples of substantive judicial review under the Charter. In keeping with the counterfactual history theme, the question arises as to whether the choice of a different term to qualify the right to life, liberty and security of the person in s. 7 would have made a difference. Nonetheless, and rather despite itself, fundamental justice has established an ironic legacy for the Bill of Rights in one of the most significant sections of the Charter where it has fueled extraordinary examples of the institution of strong judicial review that gives rise to the 162 Robert Dallek, “JFK’s Second Term”, The Atlantic (June 2003), online: 29 counter-majoritarian difficulty. As indicated in the introduction to this article, Emmet Hall predicted success for the career of John Diefenbaker, his friend and fellow graduate from the University of Saskatchewan College of Law in 1919. In relation to Diefenbaker’s signature achievement, Hall later pronounced from his position as the Chief Justice of the Saskatchewan Court of Appeal that “[t]he courts...must be vigilant in seeing that the provisions of the Canadian Bill of Rights are not breached, ignored or whittled away.”164 It is safe to say that at least two of these provisions—the 2019 CanLIIDocs 2717 notwithstanding clause and the concept of fundamental justice—will not be ignored. They will be touchstones for the debate over the counter-majoritarian difficulty as long as we have a Charter. If that is important, then so is the legacy of Diefenbaker’s Bill of Rights. The Dief is still the Chief. 164 Shumiatcher v Saskatchewan (Attorney General), 39 WWR 577, 1962 CanLII 274 at para 6 (Sask CA). 30