CAN JUDICIAL SUPREMACY BE STOPPED?

F.L. (Ted) Morton

The Charter of Rights and Freedoms has created a judicial juggernaut that has increasingly eclipsed the powers of the legislative branch of government in Canada. The primary check on judicial power is the legislative override of the Charter, the section 33 notwithstanding clause, which was included for that very purpose. Rather than being perceived as an integral part of the Charter, the notwithstanding clause, even the prospect of its use, has recently been widely construed as an attack on the Charter. This is the main reason invoked by Prime Minister Chrétien for voting against the motion calling on Parliament to use “all necessary steps” to affirm the heterosexual nature of marriage. In more than 20 years since the adoption of the Charter in 1982, the notwithstanding clause has never been used at the federal level. It has only been used 16 times at the provincial and territorial levels, 13 of them in Quebec. Quebec originally opposed the Charter’s adoption, but ironically its use of the notwithstanding clause on the explosive language issue undermined its legitimacy in English-speaking Canada. The University of ’s Ted Morton looks at the notwithstanding clause with a view to rehabilitating it rather than allowing it to fall into disuse, as the power of disallowance did in the British North America Act.

La Charte des droits et libertés a créé un mastodonte judiciaire qui a progressivement éclipsé les pouvoirs du corps législatif du gouvernement canadien. L’unique frein au pouvoir des tribunaux réside dans la clause dérogatoire de la Charte prévu à l’article 33, qui fut précisément intégrée à cette fin. Mais au lieu d’être considérée comme partie intégrante de la Charte, la seule perspective de faire appel à cette clause dérogatoire est largement interprétée comme une attaque en règle contre la Charte elle-même. C’est d’ailleurs la principale raison invoquée par le Premier ministre Chrétien pour voter contre la proposition de l’Alliance canadienne appelant à utiliser « toutes les mesures nécessaires » à l’affirmation du caractère hétérosexuel du mariage. En un peu plus de 20 ans depuis l’adoption de la Charte en 1982, la clause nonobstant n’a jamais été utilisée par Ottawa. Elle l’a été 16 fois seulement par les provinces et territoires dont 13 par le Québec, qui s’était à l’époque opposé à l’adoption de la Charte. Ironiquement l’usage que cette dernière province a fait de la clause nonobstant, à propos de l’explosive question de la langue, a sensiblement amoindri sa légitimité aux yeux du Canada anglais. Ted Morton, de l’Université de Calgary, plaide en faveur d’une réhabilitation de la clause nonobstant avant qu’elle ne tombe en désuétude, comme ce fut le cas du pouvoir de désaveu prévu à l’Acte de l’Amérique du Nord britannique.

udicial activism continues unabated, and with it, judi- December. The same-sex marriage juggernaut continues to roll cial power grows apace. Despite a decade of academic through the lower courts, despite Supreme Court precedents to J and political criticism, the Supreme Court of Canada the contrary. In the last 18 months, judges have used the continues to expand the scope and frequency of policy mak- Charter to revamp health policy, labour law and welfare benefits ing under the Charter. and have dismantled much of Harris’s common-sense revolu- The success rate for Charter cases decided by the Supreme tion in Ontario. In the 2002 Gosselin ruling, the claim to a con- Court in 2002 was over 60 percent — double the rolling average stitutional right to welfare was defeated by one vote — with the for the past decade. The pretence of judicial-legislative dialogue chief justice explicitly reserving the right to change her mind — was shattered by the Supreme Court’s prisoner-voting ruling last and thus the meaning of the constitution — in the future.

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For the cluster of rights advocacy New Brunswick) opposed Trudeau’s pro- legislatures over the courts…we did groups that both promote and benefit posed charter of rights because it trans- not [want] to be in a position where from the courts’ Charter activism — ferred so much power to judges, public policy was being dictated or the Charter revolution is far from over. especially the Supreme Court. They determined by non-elected people.” Nor will it be over until its partisans are thought that this empowerment of the Contrary to what critics believed, deprived of their primary weapons of judiciary conflicted with Canada’s long- section 33 was not a “right wing” con- political influence. These include: standing tradition of parliamentary spiracy. The then NDP premier of ● compliant if not co-operative democracy, and that it would under- Saskatchewan, Allan Blakeney, was judges, mine the capacity of the provinces to be even more adamant about including ● federal funding of rights advocacy self-governing. They feared that feder- an override provision than Lougheed, groups through the Court ally appointed superior court judges and successfully insisted on other Challenges Program, would use the Charter to unfairly strike changes in the wording of the Charter ● public acquiescence in judicial down provincial policies. to pre-empt judicial activism. Looking supremacy, Their acceptance of the Charter in back in a 1997 interview, Blakeney ● monopoly of orthodoxy in the law November, 1981 was conditional upon explained, “I had real reservations schools and legal profession, and Trudeau’s acceptance of the legislative about a constitutional Charter of ● public stigmatization of the sec- override power. As described by former Rights and Freedoms, because of its tion 33 notwithstanding clause. premier, Peter Lougheed, “The ongoing tendency to have the courts My comments here are restricted to this last issue: Can The failure to check excessive judicial activism under the the notwithstanding clause — Charter is surprising, because the Canadian framers the legislative override — be resurrected? anticipated this problem and provided a direct remedy: the The failure to check exces- section 33 notwithstanding power. sive judicial activism under the Charter is surprising, because the final ‘deal’ on November 5, 1981 was, as heavily involved in decisions which are Canadian framers anticipated this prob- is almost always the case, a trade-off. essentially political and hence brings lem and provided a direct remedy: the Essentially Trudeau got his Charter of about a politicization of the courts.” section 33 notwithstanding power. Rights and the western premiers got Section 33 of the Charter allows a gov- both the Alberta amending formula and or was the Liberal government ernment, federal or provincial, to protect a notwithstanding clause.” Without the N opposed to section 33, since it its legislation from judicial review under notwithstanding clause, there would gave the federal government the same sections 2 (fundamental freedoms), 7-14 have been no Charter of Rights. power, something that its provincial (legal rights) and 15 (equality rights). To The notwithstanding device was not supporters had not demanded. When do this, a government must insert a new. A similar clause was part of John Trudeau’s then justice minister, Jean clause in the contested piece of legisla- Diefenbaker’s Canadian Bill of Rights in Chrétien, introduced the amendments tion declaring that it “shall operate 1960. In Alberta, when the newly elected in the House of Commons on notwithstanding” any provisions of the Tories took office in 1972, they enacted November 20, 1981, he defended sec- Charter. The use of section 33 is limited an Alberta Bill of Rights, which included a tion 33 on principle, not just as a “nec- by a five-year sunset clause, at which notwithstanding clause. Similarly, the essary evil.” Section 33, Chrétien time it ceases to have any legal effect. Quebec Charter of Human Rights and explained, would serve as a “safety Alternatively, it may be renewed for Saskatchewan Human Rights Code also valve” to ensure “that legislatures rather another five-year period. Since it was contained a notwithstanding clause prior than judges would have the final say on intended to serve as an instrument for to the adoption of the Charter. important matters of public policy.” legislatures to respond to incorrect or Because of his personal familiarity Commenting at the time of the unacceptable judicial decisions, it is with the notwithstanding device, November 1981 compromise, Alan commonly referred to as the “legislative Lougheed took the lead suggesting it as Borovoy, founder and long-time execu- override” power as well as “opting out.” a way to break the federal-provincial tive counsel of the Canadian Civil deadlock over the proposed charter of Liberties Association, positively assessed ection 33 was one of the compro- rights in 1980-81. As Lougheed later section 33: S mises worked out between Prime explained: “The then premiers of Canada at the moment is a par- Minister Trudeau and seven of the eight Manitoba and Saskatchewan and the liamentary democracy in which provinces that opposed his “constitu- took the position in the will of Parliament is supreme. tional patriation” plans in 1980-81. the constitutional discussions that we If there were no notwithstandings Eight provinces (all but Ontario and needed to have the supremacy of the in the proposed Constitution, this

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supremacy would shift to the judges who would decide whether or not a law offended the Constitution…By making it legal- ly possible but politically difficult to override the Charter, they have married the two notions…The result is a strong Charter with an escape valve for the legislatures. Since then, academic commentators have provided a variety of descriptions of section 33 that capture its attempt to bal- ance the power of accountable govern- ments and nonelected judges. Professor Paul Sniderman of Stanford University has elaborated on this in a book pub- lished by Yale University Press in 1996: The root issue is who shall have the final word: the courts in their role as ultimate authorities on the Charter, or the parliaments, in their role as ultimate represen- tatives of the public? Regimes fol- lowing the American model have invested final decision-making power in courts; regimes follow- ing the English model have put it in Parliament. What distinguish- es the Canadian regime is its deliberate effort to forestall an authoritative answer to the ques- CP Photo tion of who shall have the final Alberta Premier Peter Lougheed with Prime Minister Pierre Trudeau in 1981. Lougheed word. The Canadian political insisted on the notwithstanding clause as the trade-off for the Charter of Rights. Without the legislative override, there would have been no deal, and no Charter. order invests final institutional power simultaneously in the courts, above all the Supreme and gives closure to the deci- marriage (Alberta’s 2000 Defense of Court, and in parliaments, both sions of neither. Marriage Act). federal and provincial. As evidenced by the recent House While it has since become stylish espite such an auspicious birth, of Commons debate over homosexual to dismiss the notwithstanding clause D the notwithstanding clause soon marriage, its many critics have stigma- as an unfortunate concession, no less fell upon hard times. Outside Quebec, tized it to the point that some com- an authority on constitutional matters it has been used only three times in 22 mentators claim that it has fallen into than ’s Professor years. In addition to Quebec’s desuetude and is no longer politically Peter Russell has given it high marks: omnibus use of section 33 between acceptable — much like the federal dis- The override gave Canada an 1982 and 1985, the notwithstanding allowance power. How did this happen? opportunity to get the best out clause has been used 16 times by four Like so many other anomalies in of British and American con- different governments: Yukon (1), Canadian politics, the demise of section stitutionalism…to strike a Saskatchewan (1), Alberta (1), and 33 can be traced to Quebec. In English- shrewd balance between the Quebec (13). As of 2001, eight speaking Canada there was a wide- wisdom derived from these two instances were still in force. Almost all spread backlash against Quebec’s use of parts of our heritage…The have been preemptive uses to prevent the notwithstanding clause to suppress Charter…establishes a prudent judicial review. Policy areas include the language rights of English-speaking system of checks and balances back to work legislation, land-use Quebecers. For the past 20 years, the which recognizes the fallibility planning, pension plans, education, Mulroney and then the Chrétien gov- of both courts and legislatures agricultural operations, and same-sex ernments have avoided legitimating

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Quebec’s use of the notwithstanding level — the Quebec stigma and lack at the provincial level. Again, Quebec clause by refusing to use it themselves. of legitimacy. is the model. A second contributing factor has I will suggest another less obvious The project is two-pronged. First been the public disillusion with parlia- contributing factor: the fallacy of the myth of judicial infallibility must mentary institutions and elected assuming that legislators have an be challenged and unmasked. The politicians that afflicts all Western interest in defending the prerogatives Court’s defenders blythely claim that democracies. Voters’ declining confi- of legislatures; i.e., that politicians put the Charter means whatever the dence in elected governments has long-term institutional interests ahead judges say it means. If this were true, been accentuated in Canada by execu- of short-term partisan interests such as then it would mean one of two things: tive dominance. As several surveys re-election. It is politically safer to pass either the Charter cannot be misinter- have shown, many Canadians trust the buck to the judiciary, even though preted, or the judges are infallible. judges more than they do politicians. democratic accountability and the pol- Both, of course, are absurd claims. The These are the conventional explana- icy autonomy of your provincial legis- concept of judicial infallibility is con- tions for section 33’s demise, and they lature are eroded in the process. trary to both common sense and his- are accurate as far as they go. Less obvi- tory. (The US Supreme Court once ous, but no less true, is that the Supreme his incentive is accentuated by the ruled that African slaves were not Court of Canada — like its American T familiar “staying power of the pol- human beings; the Canadian Supreme counterpart — is part of the national icy status quo.” Politically speaking, it Court that women were not persons.) governing coalition. It reflects and pro- is easier for a government do refuse to As a former chief justice of the United tects the coalition of interests States dryly observed, the that appointed its judges. Since While it has since become stylish to judges are not final because the coming into force of section dismiss the notwithstanding clause as they are infallible. They are 15 in 1985, the Dickson, Lamer an unfortunate concession, no less an infallible because they are final. and McLachlin Courts have The second prong of the served as a partner of — not a authority on constitutional matters challenge is for a provincial check on — the Mulroney and than University of Toronto’s Professor premier to craft compelling Chrétien governments. Peter Russell has given it high marks: public rhetoric that makes the As Trudeau anticipated, a “The override gave Canada an exercise of section 33 a legiti- judicial ally armed with the mate defense of provincial Charter allows the Feds to opportunity to get the best out of rights and democratic self-gov- achieve indirectly — through British and American ernment. The Supreme Court judicial fiat — what they could constitutionalism…to strike a shrewd (in its Vriend decision) and not achieve directly, or at least balance between the wisdom derived Professor Peter Hogg — the not without unacceptable politi- originator of the “dialogue the- cal costs. Skeptics are constantly from these two parts of our heritage.” ory” — have provided some chided that the Court uses the Charter give a group a “new right” than to take assistance by identifying the notwith- to protect minorities. Of course it does. away an “existing right.” In the first standing clause as a legitimate instru- The question is: which minorities? instance, the government is simply ment of judicial-legislative dialogue. When the Court engages in judi- ignoring a claim for special treatment. Here we can learn something from cial activism to advance a policy In the latter case, they can be por- former Ontario Liberal premier Oliver demand of a minority interest trayed as attacking the group. This is Mowat’s successful battle against the favoured by the Liberals — such as the especially true when the issue involves federal power of disallowance in the anglophone minority in Quebec, femi- cross-cutting cleavages — such as gay 1880s. Federal disallowance could not nists and more recently gay rights rights or abortion — that divide cau- be tolerated, Mowat argued, because it activists — the Liberals happily do cuses and party members. destroyed the political liberty of provin- what the Court tells them to do, pro- Can section 33 be resurrected? At cial voters. Mowat pointed out that if claiming that they have no choice. the federal level, the answer is proba- the opposition in the provincial legisla- At the provincial level, the non- bly no; and certainly not by the ture could appeal to their political allies use of section 33 (other than Quebec) Liberals, for whom the Supreme Court in Ottawa to use disallowance to reverse is more surprising, since it was is an important ally. The Canadian every policy vote they lost, then provincial premiers who fought for Alliance is committed in its policy “responsible government is at an end.” it. Provincial reluctance to invoke the book to the responsible use of the The ultimate question,” Mowat thun- notwithstanding clause is partially notwithstanding clause, but its ascen- dered, was “who shall govern the explained by the same factors that dancy to government does not appear province — the majority or the minori- have inhibited its use at the federal imminent. The more likely scenario is ty? — the ministry to whom the electors

28 OPTIONS POLITIQUES OCTOBRE 2003 Can judicial supremacy be stopped? have entrusted the Government, or the appeared to be adopting Reid’s solu- Popular control of judge-made minority whom they refused to trust?” tion. Alberta’s Bill 38, “Constitutional policy can also be defended on the Referendum Amendment Act,” was basis of rights theory. Noted legal the- n the 19th century, Mowat’s appeal introduced and went to second read- orist Jeremy Waldron has recently pro- I to “responsible government” could ing before the government abandoned vided an influential rights-based carry the battle. But not so today. the plan. This decision was driven by critique of constitutional rights. Executive-dominated legislatures have internal caucus politics, not by public According to Waldron, giving judges fallen into disrepute. Courts and judges opinion. I concur with Reid that the the final word on the meaning of con- have filled the vacuum. Rather than example of the national referendum stitutional rights is inconsistent with seeing governments as embodying the over the Charlottetown Accord sug- the most important of all rights, what spirit of democracy, many Canadians gests that [a majority of] “Canadians he calls the “right of rights” — the see them as unaccountable and unre- may be unwilling to vest supreme democratic right of ordinary people to sponsive. The depth of this disillusion- power in their politicians, but they participate in an equal manner in pub- ment is captured by Pierre Trudeau’s have no fear of exercising the power to lic decision making. Giving judges the successful packaging of the Charter of ratify or veto their own fundamental final say makes everyone else second- Rights as “the people’s package” — an laws by direct means.” class citizens. oxymoron of the first order. In sum, there is no shortage of raw Within this new context, the most democratic override promises to materials to construct a powerful pub- promising approach to resurrecting A provide a more effective check on lic rhetoric for subjecting judicial the notwithstanding clause comes judicial excess and overreach. But it is review to popular control by transfer- from Scott Reid: to rehabilitate the also defensible on principle. It is consis- ring the decision to invoke the notwithstanding clause, you must first tent with the norm that constitutional notwithstanding clause from the democratize it. Section 33 can only be rules should command a substantial politicians to the people. as legitimate as the institution that degree of public consensus and support The most compelling arguments wields it. The failure of section 33 to before being adopted. Most of the con- against the democratic override are the serve as an effective brake on judicial troversial Charter decisions are de facto inherent dangers of referendums and supremacy reflects the public’s low amendments to constitutional mean- plebiscites. My colleague esteem of legislatures. Reid’s solution is ing. (E.g., adding sexual orientation to has offered a powerful critique of pop- to transfer the exercise of the notwith- section 15, extending the section 3 ulism as the mirror danger of rights- standing clause to “the only institu- right to vote to prisoners, and extend- talk. The experience of Quebec has tion that commands more popular ing section 6 rights to enter or remain taught us the tendency of referendums respect than the court system — the in Canada to noncitizens.) Why should to polarize society around shallow and popular will itself.” they not be subjected to the same high simplistic slogans. On the other hand, Under this approach, the decision threshold of public acceptance as for- the experience of Switzerland and to use the notwithstanding clause mal amendments? Two provinces — some US states shows us these tenden- would be put to a provincial referen- B.C. and Alberta — already require ref- cies are not inevitable. dum at the next practical date (usually erendums to approve formal constitu- On balance, I would certainly a provincial or municipal election). tional amendments. Why shouldn’t cast my lot with letting the people This could be mandatory or optional. judicial amendments be subjected to decide, and I strongly suspect the The referendum could be held either the same test? majority of Canadians would as well, before or after the notwithstanding This is particularly true for a were they given the opportunity. Of clause was invoked by the government. Supreme Court that loves to invoke course, the whole thrust of Charter If use of the notwithstanding clause is Lord Sankey’s “living tree” metaphor litigation has been to keep decisions optional, there is a compelling case for to support its novel interpretations of like homosexual marriage as far from giving the opposition (or any grouping Charter meaning. The judges’ claim the people as possible, so it remains of say 20 percent of the MLAs) as well that they are simply keeping the con- to be seen whether Canadians will as the government the power to call for stitution in tune with the changing ever be given the opportunity to a referendum. In the referendum, the times should be put to the test of pop- reclaim their most basic right, the people of the province would be asked ular ratification. Judges are drawn right to self-government. to choose between the Court’s policy from the elite lawyering class — one- and the government’s policy, or per- tenth of 1 percent of Canadians — Ted Morton is Professor of Political Science haps a new compromise. unelected and appointed until age 75. at the and co-author, Democratizing the notwithstand- The pretence that they are an accurate with Rainer Knopf, of The Charter ing clause is not politically impossible. barometer of changing public opinion Revolution and the Court Party, pub- In 1999, the Alberta government verges on farce. lished by Broadview Press (2000).

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