Notwithstanding Your Rights: Section 33 of the Charter

Welcome to Starry Indecisus. As always, we would like to begin by acknowledging with respect and gratitude that this podcast has been recorded on the unseated territories of the Laquangan-speaking people, the songies with St. H and Esquimal nations, for a more fulsome discussion of land acknowledgments and what they mean to me personally, as well as Starry Indecisus as a podcast, please feel free to go back and listen to the first episode of season 4. Well, today's episode on the notwithstanding clause doesn't grapple with issues of indigenous sovereignty and reconciliation as directly as some of the other episodes in this season. The notwithstanding clause has long been criticized for its use and potentially used to undermine the rights and freedoms of marginalized communities, and it's important to recognize that indigenous people in Canada have long been the victims of these discriminatory laws and policies at the hands of the colonial state. So as many of you may remember, in November of last year, the Ford government preemptively invoked the notwithstanding clause to impose a four-year deal on members of CUPI who are planning on striking or following a breakdown in contract negotiations. Now vaguely at the time I knew of the existence of the notwithstanding clause, but I realized that I really had no idea how it functioned or its history, and as a half-American, the idea that the legislature could just choose to disregard sections of the constitution and legally violate constitutional rights was pretty shocking. I'm used to that being done by a reactionary and illegitimate Supreme Court, and so I set out to try and fill this gap in my legal education, and I came across an article by Patricia Hughes that really clearly spelled out the fears I had about how section 33 could be used. I reached out hoping to learn some more, and this is the conversation that you're about to hear. I hope you enjoy. Welcome, thank you so much for coming on the podcast. Now if you wouldn't mind for the listeners just introducing yourself and giving a little bit about your background in this area. Sure, good to be a Patrick. My background is initially as a political science professor, then as a law professor. I was Dean of Law at the University of Calgary, then my last position was as the founding executive director of the Law Commission of Ontario. I've taught constitutional law, spoken on it, written on it. It's been a major area of my own with some others, but for this topic that it's been a major area. So first I thought it would be smart to start with an explanation of what section 33 or the notwithstanding clause is and how it came to be included in the charter. So section 33 of the charter permits the federal government, provincial governments and territorial governments to include in legislation and override that would apply to sections two, seven to 50 and seven to 15 of the Canadian Charter of Rights and Freedom. And what that means is that the legislation will apply regardless of whether or not there is a problem under those sections. The reason it exists at all is because during the negotiations for petriation of the constitution. Initially, the effort was being made by current prime minister's father to petriate the constitution. He was willing to try to do it unilaterally, but eventually after a lot of difficulty and opposition from the provinces, he brought a reference before this framework in Canada and they said that he needed support from provinces, a significant level of support about defining what that was. In the end, in the kitchen accord with question and role in our military, the federal Saskatchewan and Ontario negotiators, they decided to include as a way to deal with the provinces who objective this overwrite clause section 33. Now, the reason for it is that apart from being able to petriate the constitution, as far as the objecting provinces were concerned, they had a concern about the impact of the courts. They didn't really trust the courts. They wanted to be sure that they could pass legislation that they really wanted to pass, at least as far as those sections are concerned, and so that's why it's included. Of course, what's interesting about it is that these are some of the most important sections of the charge, so section 2 is after all for fundamental freedoms, but not fundamental enough that they can't be overwritten by section 33. The overwrite lasts for five years, and of course that's because a traditional way for the constitutionally, I should say, a government can't be in place for longer than five years, now we'll see that legislation makes elections every four years, but it can be renewed if the government is able to do that. So we've touched a little on this already, but what was the reasoning for why certain provinces wanted this clause included in the charter? Well, as I said, the concern was that the constitution, which after all, really diminished or I won't go as far as eliminated because it's a bit questionable whether that's the case, but the constitution after all established a system of constitutional supremacy under section 52 of the Constitution Act in 1982, replacing, in effect, parliamentary supremacy, which the legislators of these provinces were concerned was being eliminated completely. They wanted to maintain some remnant of parliamentary supremacy, and that's what section 53 will happen to do. Now of course, following the implementation of the charter, Quebec famously reenacted every law that they had with the inclusion of the notwithstanding clause, but how else have we seen it been used since? Right. So Quebec did do that in the non-never spill. It actually reenacted all their legislation, fire to them, and included in the reenactments of the legislation, the override clause, and subsequently, eventually that was abandoned. But of course they've also used the clause subsequently in relation to French language riots. In the board case, the Supreme Court of Canada said, "There's very little that you can." There are just certain minimal requirements to apply section 33, and I guess we can get to those later, but the most recent cases from Quebec, of course, are the availed 21 and they'll 96. The first one relating to forbidding people who wear religious garments or a necklace or whatever, from working in certain public sector jobs, and indeed from receiving services, it covers that as well, but the faces have to be covered for that. And that's a very controversial one. The other one also relates to French language riots and establishing friendships at the bond language in Quebec, that's barrel 96. What the real remedy for section 33 is if there's a concern about it. Other provinces have also tried to use section 33, sometimes successful, sometimes not. So for example, Alberta used it in legislation to try to limit compensation that people who had been mandatory sterilised, women who had been mandatory sterilised, the limit to compensation for that, and that was withdrawn. I suppose there's been cases in which section 33 was used or threatened because of an initial court decision which overread legislation unconstitutional, but subsequent decisions found it the same legislation constitutional. In those cases section 33 was withdrawn or not used after all. Most recently, the reason why this became such an issue recently is because of Ontario's use of section 33. Ontario has used or tried to use it three times. The first time it used it or threatened to use it, I should say, was in relation to the Conservative government's efforts and successful efforts to reduce the Toronto accounts of 25 wards from 45 wards. In that case, the government said it would use section 33 if it couldn't get a stay of an initial decision which found that reduction unconstitutional. In a sense, it used it as a threat. The Court of Appeal did grant us a stay, it never used it. The government didn't use it. It did use it in a case involving limits on third-party spending. There had been limits up to a year before an election. They had limited it to, sorry, it had been six months before an election. They made it a year before the election. It was thought that this publicly limited union is more than anybody, but they used that and that was successful. That legislation had been found to be an unconstitutional issue. Of course, the most recent have been the use of section 33 in a kind of unusual way. It goes up as to say, bullying way. The education workers in Ontario who were represented by QP and the government were in negotiations with a very big gap between their positions. The QP was in a position where it could strike. Before it could strike, the government stabbed an enacted legislation to prevent them striking and to impose contracts and use section 33 to protect that on section 2. Now, the reason that was an issue here is since the Saskatchewan legislation was attempted to limit strikes, there's been a kind of plan that striking was a protected right under section 2, which I so the issue became whether or not the educational workers were able to strike or not. The government did go to the Ontario Labor Relations Board, but the party settled before that. The government was that if they returned to work, the government withdraw section 33 and it did withdraw section 33. After really in effect, the education workers QP gave up their right to strike. In a sense, the government had succeeded in what it was trying to do. They did subsequently come to an agreement, which was a lot closer to the government's position when it was to QP's position. But it was a very controversial use of section 33, and it gets us to the point of what is the remedy for the use of section 33, which is an issue about it. Yeah, that's a good point. And I think something that I think warrants consideration when we talk about this is whether or not with the teacher's strike, we're seeing the accountability mechanisms of political pressure working, or whether really the pressure of Ontario invoking it and then only withdrawing it on the condition of the end of the strike, you can say that the juice really was successful as a weapon for the Ford government, particularly given the ultimate outcome of the contracts. I think in the end, it probably didn't affect, because you had to believe in that much because, as I said, the ending position, and I can't quite remember what it was now, but it was closer to the government than it was to QP's initial, which was quite considerable, I have to say. So the remedy for, I'll go back to something I referred to earlier, which is what does the government have to do when it invokes section 33, and that takes us later to another question. So it's pretty clear from the Ford case, and that was the one in the back relating to language, French language rights, and a win toy, also in Quebec the next year, that all the government has to do is as kind of a standard clause they use, and that is that, you know, the provisions of this legislation applying up a standing section 33 of the Constitution Act 1982. And they can refer to specific provisions, or to the whole legislation, but as long as they effectively put down the right words, include the right words in the legislation, that's it. Nobody gets to reassess, you know, whether or not this is a good use of section 33, and why is that? Well, because it was included to give the provinces the opportunity to enact legislation without being hindered by the child, the remedy, therefore, is a political. If there's enough fuss about it, maybe the government will withdraw it. I referred earlier to Alberta's legislation, which would limit compensation for women who had been sterilized against their will, and there was such a fuss about that, that it was withdrawn. So public pressure worked there. In this case, was it the public pressure properly? Because this was probably the wrong group to have taken this stand against with the unions. All the unions came out in favour of the educational workers, made it very difficult for the government. They, in fact, government unions had supported the government previously in the election, came out against it. Now, on the other hand, when you look at Quebec, the bill 21, which clearly is unconstitutional, and was found to be unconstitutional, in fact, or would have been by the lower court that looked at it, couldn't do anything about it, it was a section 33, but it was pretty clear that that was the view. In Quebec, that legislation is very popular. So minorities have had a disadvantage there, because the majority, who I suppose to be protected by each other, had a disadvantage, because the majority actually are on the federal court, so nothing could be done about that, there is a case in front of the courts of a moment on that, which is actually raises a point, which is that this legislation, bill 21, affects say Muslim women more than other groups. It affects a lot of groups, but in fact, Muslim women more. The section 20A, which isn't, however, covered by section 33, is not listed in section 33, say that the section 33, therefore, doesn't apply to them, and therefore, the legislation can be unconstitutional against them, we'll have to see what happens there, but it's up all of the top, and we don't have time to look at it, but I think it's an interesting question, I'm not sure it's clear about it, it wouldn't be subject. So it's public pressure, the other effort by the forward government, where they used it, in fact, used it, it didn't matter, you know, public pressure didn't have any effect, if there was any real public pressure on. So governments are reenacted, elected, even though they use it. There are not too many cases, maybe there was the only one that might be a couple more, wherever it's to use it, it gets withdrawn because of public pressure, but that's the remedy for, you know, sometimes it's enacted, and this government gets reelected, but it doesn't use section 33 in the same legislation. It's a question, a real question as to whether or not there's any real effort to any real way to address the use of section 33. It is constitutional to use it, so. And I mean, this is really a bit of a mix between constitutional supremacy and parliamentary use of supremacy that we see in the U.S. and the U.K. respectively. But do you think that, in our case, that public pressure is really an adequate way to protect minority rights? It depends, right? I mean, it sort of worked in Ontario, there wasn't a real public pressure in for that against the use of the force. So is that right, wrong? I mean, the legislation is unconstitutional, if you take section 33 go back, it's unconstitutional. But section 33 doesn't make it unconstitutional, but it uses a constitutional method of getting around that. So public pressure is, you know what? I think back to some of the pro-rogation case situations under former Prime Minister Halford. And well, there was some outcry about that, you know, happened to be walking around in stream, that kind of thing. But there really wasn't a whole lot of public pressure. And what it illustrates is that so much of our system relies on the political culture. It relies on people understanding it, it relies on people willing to stand up for it. And if they're not, then it's very, it's follow it. So I'm not sure, as far as I'm concerned, it's included, it's there, there was a reason for it. It finances. The federal government could use it, although they happen. And therefore, you know, the Supreme Court has taken pretty much a hands off of it, although it hasn't been asked to look at it recently. I don't think that will change, but you never know. Now going through the history of the use of the Navistana clause, there are several instances where the clause was invoked or threatened to be invoked, in which the courts then rendered that to be unnecessary, as it found that the legislation was actually constitutional. For example, the back-to-work order and the Catholic school funding bills in Saskatchewan, as well as the electoral ward boundaries by the Ford government, kind of with all of this considered, do you think that the clause being invoked or threatened to be invoked, pressures the courts to find legislation constitutional? I think that's an interesting question. And I think it's one that we can't really answer, and the closest case that I think we run into, where is there some concern? One would think the courts wouldn't be a bully by this. But I suppose it is the Ward Conto City Council ward case, because it was in that case that in fact, after the initial decision which found it unconstitutional, the legislation unconstitutional, the premier said, you know, the judges until elected, I'm elected, and I'm going to do this, and I'm going to use Section 33. Then the Attorney General went to the Court of Appeal to get a stay of the decision, the initial decision was clear, the Court said. The position, the Attorney General's office told me was, you know, if you off, if you provide the stay, we won't use Section 3. Well, in some circumstances, one might consider that, I thought, all right, was it, you know, how did the Court respond? To be fair, it's not the best example, because the original decision was a go-all entry. So perhaps, you know, it would have ended up that way, but I'd say that's, that is a bit of an illustration of how it might be used as a way to kind of convince the Court, you know what, we don't want to get into this, so you can find for me, that's okay. I don't want to say the Court of Appeal, which was found that way, and we have no way of knowing what that was, it is, but I suppose just thinking about how it could happen, that might get over time. To circle back to some of the remedies to Section 33, do you think we would be better off without the nullestanding clause, and do you think we should remove it, and we would be better off just with having a stronger constitutional supremacy? Well, it's not going to happen, I mean, whatever I think, you know what, I wrote an article about this, when I was at UNB, actually, on why I thought that Section 33 wasn't a good thing, and I specifically mentioned in there that I thought eventually could be used to the override minority vote, and that's what happened in prepare. I don't think that seriously one could think about opening up the Constitution to, you know, opening those Section 33, because why would Provinces give me that, I work Provinces, I certainly wouldn't give it up, I mean, it would limit my ability to do so. You know, and there's this notion that originally it was thought, well, this will be used very rarely, et cetera, et cetera, but if you look at the way it's being used or threatened or tried to be used, it covers all kinds of different things, you know, and true, it hasn't been a great deal, but I guess the concern now is with Ontario, too, so the Ontario hasn't used it, but, you know, and now the newer ways in which Probeck has used it, not just this omnibus burials, that it's in some ways a much more dangerous thought in terms of minority rights or freedom of association rights or something like that. So I guess the other issue is whether or not somebody else should try to deal with Section 33. So during the situation with the educational workers, you had people writing about the federal government should get involved, and they should have gotten involved in Section 21, and they should still do something about that, and the question is what is the federal government's role, if what are its tools, but if it wanted to do something? So people talked about reservation and disallowance, the reserve powers and disallowance powers, which are really not huge then, and which were originally powers that UK was able to use to deal with colonial legislation. And the other way to do, as again, those to disallow provincial legislation today, hardly seems like a wise move, when you've got Alberta deciding it's going to not apply federal law, it's hardly enough both here, response to, so even if it's a different problem. So I don't think those are really available. The other way of course is a reference of legislation, and whether the federal government could put in the reference to a Supreme Court of Canada to find out whether or not it's a constitution or not. I honestly don't see how that could be effective. It's clearly constitutional to use it. You know, one of the points I meant to mention earlier about, there are equivalent to section sort of equivalent, section 33, and some other documents, like international with human rights, a couple, so which Canada is a priority. But interestingly, in those documents, the use of their overright provision is more limited. It's supposed to apply only if there's a real emergency. And there are certain rights that are guaranteed by the document that cannot be overwritten, that can be overwritten under the Church, under section 33. Would a Supreme Court look at section 33 and say, "Well, we should learn from that?" I don't think so. Those are expressive provisions, section 33 is explicit, what it says too, and it doesn't need a lot of room to make it broader than it is. So I kind of feel I'm reluctant to, but I really don't think there's a lot that can be done and that one has to look for the nature of the constitution. Yeah, that does seem to be the practical reality, at least at the moment. Is there anything else that you think we've missed in our discussion here today, or is there anything else in particular that you would like to highlight? I don't think there is. I mean, we've talked about where it came from, why it's there, why it's not likely to disappear in a hurry. You know, how one can assess individual legislation. One of the issues that actually has arisen that people have written on, well, as a couple of things, maybe we should comment on briefly one. The first one, and then I'll come to the thing I was going to comment on. The first one is that it can't be used retrospectively, but you know, it can't go back to existing legislation and apply section 33. Remember what Quebec did, reenacting, it's not just legislation, and one of the issues with that legislation in Ontario that limited food by the funding was that initially enacted legislation without it, it was declared unconstitutional legislation. So then they reenacted the legislation with the provision, there was section 33. There was some question at that time about the legitimacy of that, because you can't just reenact legislation, joined the same, same as sitting at parliament, what the legislation legislative assembly. I guess one question, one, right, I'll give you this, one, two, three, three, I've got different legislation. And somehow, despite the concern about that, nothing. Thank you so much for taking the time to speak with me. It's been an absolute pleasure talking to you, and I think I've learned a lot, so thank you so much. Thank you. One thing I'd like to clarify is the taste for the abolition of the notwithstanding clause. Because I do think there is an important distinction to be made between the appetite of politicians to abolish the notwithstanding clause versus the will of people. There was a study done by the Angus Reed Institute that came out in January that found that the majority of people in all provinces, except for Quebec, would be willing to abolish the clause, whereas only three and five Quebecers would keep it. I'll link that in the description. There is some interesting stuff in there, including maybe unsurprisingly significant differences and people's opinions based on their political affiliation. One thing that would be interesting is to compare that to the opinions of the politicians. Because they are the ones that have a more direct interest in keeping the notwithstanding clause and keeping the power to remove people's rights versus the will of the people who obviously other ones, often whose rights are being infringed upon by the state. Obviously, it's not such a simple dichotomy when you're talking about that because you're talking about majority rule and minority rights generally, but I think there is, that was a distinction that I wanted to make because I don't think it is so cut and dry as there being no kind of will across Canada for this to be removed. Thank you all so much for listening. I really hope you enjoyed this episode. If you want to hear more, please go back and listen to earlier episodes this season. Or if you've already gone through all those, you'll have to wait another two weeks when we have another episode coming out. Thanks so much. [Music]