Flipping the Line: Has the Supreme Court really become more activist?
Leonid Sirota replies to The Line editors' quasi-defence of the Ford government's decision to invoke the Notwithstanding Clause.
The Line welcomes angry rebuttals and responses to our work. The best will be featured in our ongoing series, Flipping the Line. Today, writer Leonid Sirota on misperceptions of the Notwithstanding Clause.
The notwithstanding clause is in the news. Again. We may soon enough get to the point where its invocation in hurriedly passed legislation is no longer newsworthy, but not yet. Understandably, The Line has discussed the Ford government’s resort to it in order to force striking school support staff back to work. Unfortunately, this discussion relied on misperceptions about how we have got to the state of affairs where use of the notwithstanding clause is becoming routine. I would like to correct the record.
Now, faithful readers of The Line may recall that I took to its pages to criticize the previous deployment of the notwithstanding clause by Ontario. Indeed, to put my cards on the table, I think that the notwithstanding clause should never be used. Not because courts never get things wrong ― I will get to this below. But because politicians are the last people you want to trust with deciding when courts are wrong. That said, I do not mean to rehash this argument here. The Line readers, and other Canadian citizens will make up their own minds ― but it will be useful for them to fully understand the facts.
First, while it is true that, as The Line said, the notwithstanding clause “was a compromise … written into the Charter in order to successfully patriate our constitution in 1982”, it does not follow that people shouldn’t be “shocked and outraged when a government uses a legal power”. To a great extent, the Canadian constitution’s sound functioning depends on officials and governments forbearing from using their legal powers to their full extent.
Consider: The Governor General has the legal power to dismiss a Prime Minister. Yet it would have been shocking and outrageous for her to do it when the truckers were demanding it, regardless of the merits of the Prime Minister’s continuance in office. Or: The federal government has the legal power to “disallow”― that is, to cancel ― provincial legislation. But it would be shocking and outrageous for Prime Minister Trudeau to disallow Ontario’s back-to-work law, regardless of whether it is iniquitous. Such actions would breach fundamental principles: democracy in the former case, and federalism (as well as democracy) in the latter. They would be deeply wrong, despite being perfectly legal.
You can certainly argue that invoking the notwithstanding clause is a different matter; that either generally or at least in a particular case doing so does not contravene the principle that the rights of minorities and individuals must be protected against majoritarian whim. But that’s a different argument from one that simply points at the notwithstanding clause’s existence or historical pedigree, real though these are.
Second, The Line is, I’m afraid, rather unfair to Quebec when it says that the Belle Province “has been dipping its hand into that particular candy jar like a sugar-addled child at Halloween since '82.” Quebec’s relationship with the notwithstanding clause is more complicated than this.
Quebec has not always been abstemious. In a fit of pique at the Charter being enacted without its consent, René Lévesque’s government applied the notwithstanding clause to all provincial legislation in 1982. This lapsed and was not renewed in 1987, but the following year Robert Bourassa’s government used the notwithstanding clause to preserve a ban on commercial signs in languages other than French, which the Supreme Court struck down. And, of course, Quebec has recently used the notwithstanding clause in its pernicious legislation banning some public employees and officials from wearing religious clothing, as well as another law further turning linguistic screws.
But between 1989 and 2019, Quebec used the notwithstanding clause only twice. Since then, Quebec has used it the same number of times as Ontario now has: also twice. And Ontario nearly had a third invocation to its record, with legislation scrambling Toronto’s 2018 election. A sugar-addled child with a cookie jar? Not really, I would say, or not yet ― many the children in our cabin have been developing bad habits of late.
To be sure, the notwithstanding clause never quite became taboo in Quebec in the way it used to be in other provinces until a few years ago. And one might argue whether Quebec's dress-code legislation is a worse use case for it than anything Ontario has done. But then again, how much better is it for a government to silence political opponents than to attack religious minorities? I’d say all this candy is about equally poisonous.
Third, and perhaps more debatably, I think The Line is also mistaken in attributing the notwithstanding clause's recent resurgence to “the Supreme Court ha[ving] grown bolder and more ‘activist’ in overturning and overriding laws, using the Charter to massively expand Canadians' ‘rights.’” The trouble with this claim is that the resurgence has actually coincided with a comparatively quiet period in the Supreme Court’s history of rights adjudication.
The only specific instance of judicial activism The Line mentions is the 2015 decision that gave the right to strike “constitutional benediction”, in the words of Justice Rosalie Abella, who wrote the majority opinion. While I don’t like the phrase “judicial activism”, I agree that the Court was just making things up there. I said so at the time, and I think the Charter should be amended to reverse that flight of judicial fancy. But it is telling that The Line mentions nothing more recent and, in particular, no decisions that would have coincided with the notwithstanding clause’s renaissance, which did not begin until 2018.
That’s not to say the Supreme Court has not erred since then. One recent high-profile blunder came in the case of the Quebec mosque shooter, where the Court effectively held that life imprisonment without parole is an unconstitutional violation of human dignity, not matter how horrific the crimes for which it is imposed. I have denounced the “soulless humanitarianism” of that decision as best I could. But, misguided as it was, it was unquestionably an attempt to interpret the constitutional “right not to be subjected to any cruel and unusual treatment or punishment.”
So too with a number of other recent cases. Wrong? Quite possibly. But made up, massive expansions of fake “rights”? No. On some recent occasions, as in the Toronto municipal election case and in that of “edgelord comedian” Mike Ward, about which I have also written for The Line, the Supreme Court has resisted calls to expand rights, if only barely. Meanwhile, so far as the “right” to strike is concerned, governments from sea to sea have managed to deal with it for more than seven years. It is a misbegotten nuisance, but to say that the Ontario government’s hands were forced by an activist Supreme Court does not fit with the evidence.
To repeat, none of this is meant to settle the debate about the notwithstanding clause either generally or in the most recent instance of its use. I only wish that this debate is better informed. But I hope I will be forgiven for concluding with a plea: even, and especially, if you think that the notwithstanding clause can and should be used from time to time, you should demand that it be resorted to after serious thought and debate. Twice now the Ford government has forced it through in days. No laws should be made in this way, and least of all laws that might, at least on one plausible view, take away people’s fundamental rights. I really don’t think this is too much to ask for.
CORRECTION: This piece has been updated to note two additional instances of Quebec using the notwithstanding clause after 1989. The original version contained incorrect information. We regret the error.
Leonid Sirota is an associate professor at the Reading Law School (U.K.) and the founder of the Double Aspect blog.
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