Editorial: Section 33 is the moderate option

For all his cheerleading against parliamentary supremacy, Andrew Coyne won’t like what happens if Sean Fraser gets his wish for the notwithstanding clause.

(Minister Sean Fraser. Photo credit: Collision Conference. 2023.)

Andrew Coyne is wrong about a great many things. One of them is section 33 of the Canadian Charter of Rights and Freedoms, also known as the notwithstanding clause or parliamentary supremacy clause, which was included in the constitutional bargain struck in 1982 and allows Parliament and provincial legislatures to suspend judicial review on various Charter grounds for a period of five years.

Coyne, who might be described as a judicial supremacist, thinks this power is a terrible thing, despite also recognizing that courts often get Charter claims wrong.

Unsurprisingly, he has therefore agreed entirely with federal Justice Minister Sean Fraser’s intervention, on behalf of the Carney government, in an upcoming case challenging Quebec’s secularism law before the Supreme Court of Canada. There, Fraser and dozens of interveners (virtually all of them also funded by the federal government) will be arguing for the Supreme Court of Canada to invent various limits on the use or effects of section 33, against its plain text and intended scope.

The trouble for Coyne—and for Canadian jurists who enjoy the status and privilege of setting policy in the place of elected legislatures—is that section 33 represents the moderate option. When faced with activist courts who have overstepped their role in a way that effectively undermines the ability of governments to govern, elected officials have other responses which they may feel compelled to pursue.

Two such options exist under the U.S. Constitution, which contains no equivalent to section 33. One is outright political intimidation, as Franklin Delano Roosevelt’s infamous “fireside chat”, which convinced the U.S. Supreme Court to abandon its destructive, anti-worker “Lochner” jurisprudence, amply illustrates.

Another is to simply disregard what the courts think about contentious social policy issues over which they hold no special expertise anyway. To be clear, both of these options are extreme.

No one, Andrew Coyne or otherwise, should want them to be pursued. Elected officials may nonetheless consider them necessary. Both lie outside the normal constitutional order, but, as American jurists have been forced to recognize, a constitution is not a suicide pact.

In contrast, the framers of Canada’s 1982 Constitution had the benefit of this American experience and, in typical Canadian fashion, opted for a compromise that would avoid the need for elected officials to exercise such extreme options.

Instead of designing a constitution where the political branches might feel that they have no choice but to respond to courts through extra-legal means, the framers opted to include a provision that allowed Parliament and legislatures to respond to court decisions by suspending judicial review for a five-year period.

This is the only limit the Charter places on the use of section 33. But it is nonetheless significant: legislation is not easy to pass, and elected governments must expend significant political capital even to renew the use of section 33, as recently happened in Quebec with its renewal of the clause to insulate its secularism law from judicial review.

Not content with this compromise, Fraser, along with the dozens of interveners already referenced, have taken up a position that aims to consecrate an absolute judicial power to control the content of legislation.

This move appears to be animated by the belief that the courts, which are mostly made up of judges appointed by the Liberal Party and whose decisions generally lean to the left on social issues, will use this power to place their policy preferences beyond any possible challenge or reversal by the provinces or any future federal Conservative government.

Indeed, we appear to have confirmation that the federal and British Columbia governments have attempted to use the courts to do this in at least one recent British Columbia case involving Aboriginal title.

But if Fraser and these interveners want to achieve this objective by asking the Supreme Court to craft new restrictions on the use of section 33—effectively subjecting the power to suspend judicial review by courts to judicial review by courts—the ultimate effect of this decision will not be to entrench an absolute judicial power.

Instead, it will simply mean throwing out the compromise reached in 1982 and casting Canada into precisely the kind of constitutional arrangement that the framers of that settlement had hoped to avoid. Surely, Andrew Coyne will not be happy with what comes next. No one should be.

Indeed, in the absence of section 33, a federal or provincial government may feel that it has no choice but to adopt one of the American responses when faced with a court decision that calls into question its very ability to govern.

Such cases are hardly hypotheticals: they are now an almost weekly occurrence. Take, for example, the Ontario Superior Court’s recent decision in Cycle Toronto v. Ontario.

In that instance, Justice Paul Schabas held that the Ontario legislature violated the Charter right to life, liberty, and security of the person of cyclists when it enacted legislation to remove certain bike lanes in Toronto. He then issued an injunction prohibiting the government from removing the bike lanes in question.

While the decision in Cycle Toronto is presently being appealed and may yet be overturned, the possibility of such an appeal hardly undermines the decision’s deleterious effects.

Even setting aside the apparent absurdity of recognizing a Charter right to bike lanes, this decision suggests that virtually any city planning decision—including whether to remove speed cameras, or perhaps to build new homes—may be derailed by Charter litigation dragging on for many years, during which courts are increasingly likely to grant injunctions to prevent the law from taking effect.

Canada, as most young people know, has been experiencing a housing crisis for some time now. Difficulties with new infrastructure construction in overcrowded cities such as Toronto contribute significantly to this problem. Absent section 33, any government wishing to offer a meaningful remedy may feel it has no choice but to simply disregard what the courts have to say, or worse.

Similar problems currently plague the Canadian criminal justice system, to give just one other example. Here, the situation has become so dire that police forces across the country have begun to issue public statements complaining about specific prosecutorial and judicial decisions.

While some of these problems cannot be directly attributed to the Charter—they are flaws in the exercise of prosecutorial and judicial discretion—it is likely that at least some of these problematic approaches to criminal justice will be given constitutional benediction by Canadian courts if Parliament ever attempted a reform.

Such developments would only amplify the existing problems in Canadian criminal justice that do, in fact, arise from the Charter.

Among other things, those problems include issues with the release of potentially serious offenders due to court delays, following the 2016 Supreme Court of Canada judgment in R. v. Jordan. They also include various issues with sentencing, such as the Supreme Court’s effective prohibition on mandatory minimum sentences.

If violent criminality and organized gang violence are to be addressed, legislators may feel they have no choice but to disregard at least some judicial decisions in this area—that is, if section 33 is effectively taken off the table by judicial fiat.

Unfortunately, there are already signs that Fraser and co.’s gambit, asking the Supreme Court of Canada to consider inventing limits on the use of section 33, has already undermined the stability of the 1982 constitutional compromise and caused Canada to exit the realm of normal constitutional law.

Notably, Quebec has chosen to respond to this challenge in its proposed law respecting the Quebec constitution, unveiled on Thursday, by entrenching a power analogous to section 33 along with several other provisions.

As of publication, Andrew Coyne has not yet commented on the latest Quebec bill (he has perhaps been too busy retweeting anti-Trump content). But he is almost certain to dislike the proposal, as, for that matter, will most members of the Canadian legal elite. In a certain sense, these objections are not entirely without merit.

Certainly, the arguments in support of the constitutionality of Quebec’s proposed amendments are no more spurious than those Fraser and co. are now making before the Supreme Court of Canada. If anything, they are considerably more reasonable on the whole. But the Quebec proposal nonetheless involves a form of constitutional hardball, of the kind that would not have been necessary had the 1982 compromise that included section 33 not been challenged.

Still, Quebec’s proposals remain within the scope of the moderate option represented by that 1982 compromise.

By attempting to safeguard some version of the power to suspend judicial review embodied in section 33 of the Charter, Quebec’s current government, which claims to be autonomist without being separatist, surely wants to avoid the need to resort to tactics reminiscent of those used to check the Lochner-era U.S. Supreme Court, or ignoring the decisions, whether individually or in their entirety through a vote on Quebec secession.

Again, these are the only two options available to elected officials under an orthodox reading of the American Constitution.

If this attempt fails, and if Sean Fraser gets his wish by having the Supreme Court of Canada invent new limits on section 33, Andrew Coyne—just like the rest of us—really won’t like what comes next.