Gerard Kennedy: Sean Fraser is pushing Canada toward U.S.-style judicial power

If the A-G's view prevails, it will be the judiciary, and the not the legislature, that has the final word in rights interpretation.

The U.S. Supreme Court.

By: Gerard Kennedy

Recent weeks have seen myriad commentators wonder if Canada’s elbows are “down” with respect to U.S. President Donald Trump’s provocations. Significant sympathy must be given to Prime Minister Mark Carney here in dealing with an unpredictable narcissist. Figuring out the best strategy is a mug’s game. But no one should doubt that the PM does not want Canada to become America.

Recent weeks have also seen immense scrutiny of Attorney General Sean Fraser’s written argument against the notwithstanding clause in the case English Montreal School Board v Attorney General of Quebec. This is continuing to prompt outrage from provincial political leaders and constitutional law scholars (particularly those in Quebec and western Canada), who assert that the argument advanced by Fraser risks destroying a constitutional settlement and provoking a national unity crisis. This in turn has led to commentary (notably from Andrew Coyne), countering these commentators.

What perhaps is under-appreciated in all of this, however, is the extent to which Fraser is arguing for an incredibly American conception of judicial power.

To remind everyone: this case is a challenge to a Quebec law that prohibits many civil servants from wearing “ostentatious” religious symbols at work. Though seeming commonsensical to many in France, this law is profoundly illiberal and anathema to Anglo-American conceptions of freedom of religion.

But within “Anglo-American” common law legal traditions, there is still significant variation in terms of the role of the courts compared to the legislatures in being the final adjudicators of rights. In the United Kingdom, for example, courts cannot invalidate legislation for violating rights. At most, they attempt to reconcile a statutory bill of rights with legislation. If they cannot do so, they can only issue a declaration that the legislation is incompatible with the bill of rights — though the legislation stands. The same is true in New Zealand. In Australia, there is not even a statutory bill of rights.

These are highly functioning liberal democracies with incredibly respected judiciaries. They are hardly rights-abusing dystopias.

In the United States, on the other hand, the judiciary’s conception of rights is final. Once the judiciary has invalidated legislation, the only way to restore the legislation is to convince the judiciary to change its mind.

Canada, after the entrenchment of the Charter in 1982, moved from a conception of rights protection akin to the United Kingdom to one much closer to the American model. However, s 33 of the Charter — the “notwithstanding clause” — permits legislatures to temporarily override judicial interpretations of rights. These rights are framed in the Charter at a high level of generality such that their interpretation is subject to reasonable disagreement. Accordingly, s 33 was an essential part of the bargain that gave Canada the Charter.

Back to Fraser’s argument: parts of it are, to be sure, not implausible. Notably, he argues that courts have the power to issue declarations that Charter rights have been unreasonably limited, even though section 33 ensures that the law can continue to operate. In other words, the Court would essentially issue an advisory opinion as to what it would decide had s 33 not been used. Voters and politicians can take that advice as they will, but there would be no immediate effects of such a declaratory judgment. There are very good arguments against this position, but I’ll leave them for another day. Suffice it to say that many constitutional law scholars have been advocating for this position for years, and it needs to be taken seriously.

But much more dramatically, and contrary to decades of scholarship and case law, Fraser argues that s 33 cannot protect legislation if it would cause “irreparable” damage to a Charter right, and that “repeated” invocations of s 33 may amount to a constitutional amendment such that the judiciary can invalidate the law.

If accepted, this would move us to an unambiguously American model of rights conception. Qualifiers (“irreparable”, “repeated”) don’t suffice, as even those qualifiers need to be interpreted by the judiciary, as does the right itself. In other words, if Fraser’s view prevails, it will be the judiciary, and the not the legislature, that has the final word in rights interpretation. This would clearly amount to the constitutional amendment that Fraser purports to be worried about.

In public commentary since, Fraser euphemistically suggests that this is necessary to protect rights. This is very much building on the American experience of the Warren and early Burger courts, from the mid-1950 to mid-1970s, where progressive policy battles were won in the Supreme Court. This excited Canadian law professors like Pierre Elliott Trudeau and young Canadian law students like future Supreme Court Justice Rosalie Abella, who lamented Canadian constitutional law’s boringness.

Flash forward 40 years: the rest of the Anglosphere has adopted almost all of the policy preferences of the Warren and early Burger courts, but with limits and qualifications. This required engaging in the messy trade-offs of legislating and balancing conflicting goods.

Do people really think the United States better protects individual rights today? To ask the question is to answer it. The conservative establishment there caught on to the fact that the only way to achieve certain policy outcomes was to stack the courts. (At least, the only legal way — American history also has examples of politicians intimidating the judiciary or ignoring judicial orders, but those are even more antithetical to the rule of law.) The appointments process in the United States has become partisan theatre and respect for the judiciary as an institution has tanked.

Having a notwithstanding clause prevents the need for this. It allows politicians to express disagreement with judicial rulings and take the political heat for doing so. At times, that political heat isn’t enough for those who view it as almost incomprehensible that the elected representatives of the people — rather than specialized judges — have the final word in conceptualizing rights.

In this vein, the straw-man argument that Fraser has put forward in his factum — that surely the notwithstanding clause cannot protect laws reinstituting slavery or authorizing arbitrary executions — exists in a world where judicial rulings are self-enforcing rather than requiring buy-in by the populace. (Query whether a society that wants to reinstitute slavery would listen to a court telling it otherwise.) Even taking these hypotheticals at face value, however, they fail to consider that Canadian courts would be in the same position as British, Australian, or New Zealand courts in such a situation. Like our Commonwealth cousins, Canadian courts would be unable to invalidate the legislation for offending a bill of rights.

Judicial review to ensure that legislatures and especially executive actors act within the ambit of their authority is a sign of a healthy democracy that values the rule of law. In order to preserve courts for when we need them, however, judges need to be seen as upholding the text and purpose of the constitution as it is rather than what some may normatively want. Judicial review on contested matters of rights conceptualization is not an intrinsic element of that, as the Australian experience demonstrates. Rendering laws inoperative for offending bills of rights is certainly not an essential element of the rule of law — on the contrary, it is a particularly American conception of rights, and one that has served the United States questionably.

Canada may have hit the constitutional Goldilocks zone by having relatively strong judicial power and a respected judicial system with a respected non-partisan appointment process. (Though there is some evidence of this diminishing.) The price of this may be the notwithstanding clause. If that price is not paid, do not expect everything else to remain equal.

Gerard Kennedy is associate professor in the Faculty of Law at the University of Alberta, where he teaches and researches procedural law and public law. He is executive director of Advocates for the Rule of Law.

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