Above the Law? Understanding the Notwithstanding Clause

By Catherine Ma

On September 20, 2018 the David Asper Centre for Constitutional Rights convened a panel with U of T Law Professors Yasmin Dawood and Lorraine Weinrib, and Goldblatt Partners’ Steven Barrett to discuss the constitutional challenge to the Better Local Government Act. The proposed legislation would have reduced the size of Toronto’s city council in the midst of its municipal election, as well as ending mandatory election of regional councillors across all regional municipalities. Superior Court Justice Edward Belobaba struck down the legislation, finding that it was an unjustified infringement to s.2(b) of the Charter. The Court of Appeal of Ontario ultimately granted a stay of the Superior Court’s decision until a full appeal could be heard after the election. Its effect was allowing the Better Local Government Act to govern the 2018 municipal elections in Ontario.

Before the Court of Appeal rendered its decision, Ontario’s Premier Doug Ford had threatened to invoke the notwithstanding clause if a stay was not granted. The notwithstanding clause allows the federal government or a provincial government to enact legislation that overrides certain fundamental freedoms, legal rights, and equality rights guaranteed in the Charter. Premier Ford further warned that he would not hesitate to use the notwithstanding clause in the future, without providing specific details.

The Panel Discussion

The panelists all provided unique perspectives regarding the constitutional challenge to the Better Local Government Act and the notwithstanding clause itself.

Above the Law panelists: Prof Yasmin Dawood, Prof Lorraine Weinrib, Steven Barrett [click on photo for link to webcast of panel]

Professor Dawood summarized the Superior Court and Court of Appeal decisions. She noted the that it was “novel” to argue that the Better Local Government Act infringed s.2(b) by depriving voters of their right to cast a vote that would enable effective representation. She questioned whether the legislation also infringed the s.2(b) rights of political donors.  Professor Dawood ultimately concluded, “Interrupting an election midstream is inappropriate and completely inconsistent with notions of democratic and electoral fairness, even if it is the case that the provincial government has the power to do so.” Democratic legitimacy and electoral fairness requires that the provincial government consult all stakeholders before changing election laws.

Professor Weinrib focused on the principles that govern use of the notwithstanding clause. She emphasized that the drafters envisioned the notwithstanding clause as a narrow exception, used only when a Charter right would “fundamentally damage society’s stability and well-being.” She added that the notwithstanding clause cannot be applied retroactively; in this case, the provincial government cannot invoke the clause since candidates already spent resources, social capital, volunteers, and energy; and interacted with their constituents. Professor Weinrib further criticized Premier Ford for threatening to invoke the notwithstanding clause whenever the courts strike down provincial legislation as unconstitutional. She recommended asking the Supreme Court of Canada to clarify the constitutional principles that govern the use of the notwithstanding clause.

Mr. Barrett discussed specific Charter arguments made in the case, as well as the Court of Appeal’s decision. He commented that for the stay application, it was “unusual” for the Court of Appeal to examine the substantive merits of the s.2(b) argument rather than the usual factors for a stay application. He criticized the Court of Appeal for ignoring how the Better Local Government Act undermines the effectiveness of candidates’ political speech. Mr. Barrett criticized Premier Ford for threatening to routinely use the notwithstanding clause in the future as well. He warned this threat has a “corrosive effect” on judicial legitimacy and potentially judicial independence. Individuals must make it clear that using the notwithstanding clause is only appropriate in exceptional circumstances.

Other Uses of the Notwithstanding Clause

Provincial governments have rarely used the notwithstanding clause, particularly for its intended legal function. From 1982 to 1985, the Parti Québécois placed a notwithstanding clause in all of its new legislation and retroactively amended all existing laws to include such a clause in order to protest the enactment of the Constitution Act, 1982, which it had not signed. Its actions were a political protest, rather than aimed at protecting a specific law from a Charter challenge.

In 1988, Quebec’s provincial government invoked the notwithstanding clause in response to the companion cases, Ford v Quebec (AG) and Devine v Quebec (AG), which struck down provincial legislation that prohibited the public use of all languages other than French. The legislation already had a notwithstanding clause to override s.2(b) of the Charter; however, the Supreme Court of Canada held that the legislation unjustifiably infringed a similar guarantee in Quebec’s Charter of Rights and Freedoms. The provincial government then introduced a virtually identical bill, except with clauses to override the Charter and the Quebec Charter for a five-year period. Following the expiration of this period, the provincial government amended the law. The amended law did not include a notwithstanding clause.

In 2017, Saskatchewan’s provincial government used the notwithstanding clause in the School Choice Protection Act. Its use responded to Good Spirit School Division No. 204 v Christ the Teacher Roman Catholic Separate School Division No. 212, which held that funding non-Catholic students who attended Catholic schools was an unjustified infringement of s.2(a) and s.15(1) of the Charter. Saskatchewan Premier Brad Wall justified its use on the basis that the legislation would protect school choice for parents and students, including faith-based options. There was no political opposition to its use.

Most recently, Québec Premier François Legault threatened to use the notwithstanding clause in order to pass a controversial “secularism law.” This proposed legislation would prevent public servants – including teachers, police officers, and judges – from wearing religious garments while performing public functions. The law is widely interpreted as targeting Muslim women who wear a niqab.

It is hoped that Ford and Legault’s recent threats will not embolden others to invoke the notwithstanding clause inappropriately. In light of these threats, the appropriate use of the Constitution’s notwithstanding clause must continue to be scrutinized, perhaps as Professor Weinrib suggested by the Supreme Court of Canada itself.

Catherine Ma is a 3L JD Candidate at the Faculty of Law and was a student leader of the Asper Centre’s Indigenous Rights student working group in 2017-2018. 

The Achampong court challenge: read the legal arguments here

 

On September 10, 2018 Superior Court Justice Edward Belobaba ruled that Premier Doug Ford’s Bill 5 – the so-called Better Local Government Act – to reduce Toronto’s city council from 47 wards to 25, breached s. 2(b) of the Charter and was therefore unconstitutional. Shortly thereafter Premier Ford announced that not only was his government going to appeal the court’s decision, but he was going to invoke the Constitution’s “notwithstanding clause” for the first time in Ontario’s history to override the judge’s decision. The revised Bill has been introduced in the legislature with debates lasting into the late night; while a stay application, pending the appeal of the court decision, has been scheduled for Tuesday, September 18th. 

The David Asper Centre for Constitutional Rights is carefully observing the events as they unfold and is pleased to be convening a moderated panel discussion on Thursday Sept 20th at 4:30-6:00pm at the University of Toronto Faculty of Law (J250 Jackman Law Building, 78 Queens Park) in order to unpack the various legal issues involved in this unprecedented case.

Panel members will include two of our faculty’s Constitutional Law Professors Lorraine Weinrib and Yasmin Dawood, and litigator Steven Barrett of Goldblatt Partners LLP.

View the EVENT POSTER here.

The Asper Centre has collected the relevant court papers in the case and is pleased to share them here:

Achampong – Factum

ACHAMPONG decision Superior Court Sept 10 2018

City of Toronto – Factum (Stay Motion) (Motion File No M49615)

City of Toronto Factum CTF Factum

Factum – Stay pending appeal FINAL (for service and filing) v 2

Factum of the Intervenors, Hollett et al.

Factum of the Proposed Intervener returnable September 18, 2018

Factum of the Responding Parties, Chris Moise et al. (01193002)

Factum_Achampong_Stay C65861 M49615

Hollett – Factum (stay)

Moise – Factum

Moise – Reply Factum of the Applicants (01187040)

Supplementary Factum FINAL

 

 

Procedural delays prevent constitutional answers in B.C. Medicare case

By Sara Tatelman

It is a truth universally acknowledged that a first-year law student in possession of a jam-packed schedule must be in want of an excuse to skip Legal Process class. But as we see in Cambie Surgeries Corporation v. British Columbia (Attorney General), both ignorance and careful manipulation of the smallest rules of civil procedure lead to months- and even years-long delays before pressing constitutional questions will be answered. So 1Ls, skip at your peril.

Cambie Surgeries centres on British Columbia’s ban of most private healthcare. The plaintiffs – two private clinics owned by Dr. Brian Day and four patients – argue the unconstitutionality of three provisions of B.C.’s Medicare Protection Act: prohibition of private duplicate insurance, limits on extra billing, and preventing doctors from being paid by both the provincial Medical Services Plan and directly by patients. They argue that by preventing private billing, the province forces patients to suffer as they languish on waiting lists. They allege this infringes their s. 7 Charter right to security of the person, and the fact that some residents have access to expedited private medicine through workers’ compensation and government-run auto insurance infringes other British Columbians’ s. 15 equality rights.

The trial began in September 2016, was adjourned in April 2017 partly due to the plaintiff running out of funds and partly due to inefficient presentation of evidence, and re-commenced on April 9, 2018.

Between February and April 2018 alone, British Columbia filed eight interim motions. Seven sought to strike parts of various witness’s affidavits, while one sought to enforce Cambie Surgeries’ compliance with a previous disclosure order.

Such evidentiary disputes aren’t new: in an April 2017 interim judgement, Justice John Steeves noted that half of the 70+ days of the trial had been devoted to argument over expert witnesses. In an interview with the Canadian Press, Dr. Day said the government delays were an attempt to bleed him dry and force him to abandon his suit.

Between March and May 2018, Steeves J. released 11 interim judgements responding to the parties’ very particular quibbles. Most of the motions sought to strike expert witness affidavits in whole or in part. Steeves J. assessed the impugned statements one by one, concluding that some are admissible because they derive from the witness’s direct experience and observations while others are inadmissible because they include hearsay evidence or opinion.

The line between description and argument can be fine: stating that many patients will deteriorate as they wait for treatment is admissible, but stating that surgery gets more challenging the later it occurs is not (2018 BCSC 759 para 11). Similarly, in another judgement, some comments that might be described as opinion were held to be admissible descriptions of the physician’s work, such as his statement that efforts made at the hospital will be insufficient to meaningfully reduce his waitlist (2018 BCSC 760 para 26).

In another motion, British Columbia sought to enforce Cambie Surgeries’ compliance with a previous order. Specifically, Cambie Surgeries hadn’t produced documents it had been ordered to, and allegedly redacted 55 documents without any explanation. It also failed to list documents it didn’t have in its possession or control, as well as to include any information about privilege, all of which violates the Supreme Court Civil Rules. Steeves J. ordered Cambie Surgeries to provide unredacted copies of certain documents, an amended list of all relevant documents, and an affidavit from Dr. Day that all relevant documents have been disclosed. “… The amended list of documents will comply with the Rules by indicating the documents or classes of documents for which privilege is claimed,” Steeves J. said. “Following discussions and argument I think counsel now understands what that means.”

It’s been almost two years since the Cambie Surgeries trial began, and while a CanLII search yields nearly 50 interim decisions, we’re nowhere near a final judgement. Maybe that’s because British Columbia is disputing the smallest points in the hopes that Dr. Day, drained of his assets and mortgaged to the hilt, will slink away, taking his Charter challenge with him. Maybe that’s because Cambie Surgeries’ lawyers are making disclosure mistakes that would cost them points on a 1L Legal Process exam. Whatever’s causing the delays, and whatever one’s thoughts on privatized medicine in the Canadian healthcare system, it’s clear that the complexities of civil procedure aren’t helping the country get an answer to an important constitutional question.

Sara Tatelman is the Asper Centre’s 2018 summer research assistant.

Selected responses to R v Comeau

By Sara Tatelman

Beer remains imprisoned by provincial borders. In 2012, Gerard Comeau of Tracadie, N.B. was fined nearly $300 for bringing 15 cases of beer and three bottles of spirits from Quebec to New Brunswick. His battle against the law behind that fine has finally wound its way up through the courts.

Last month, in the final word on the matter, the Supreme Court of Canada reversed the trial judge’s decision and found constitutional s. 134(b) of the New Brunswick Liquor Control Act, which limits the amount of extra-provincial Canadian alcohol individuals can bring into the province. The Court determined laws that aim to curtail the inter-provincial passage of goods, whether directly through tariffs or indirectly through fines, violate s. 121 of the Constitution Act, 1867, which states that all items manufactured in any province must be “admitted free” into the other provinces. But laws with different aims that incidentally curtail such passage do not violate s. 121. In this case, the Court noted the legislation aims “not to restrict trade across a provincial boundary, but to enable public supervision of the production, movement, sale and use of alcohol within New Brunswick” (para 124). Furthermore, the impugned provision targets black market bourbon and Fredericton-brewed rotgut, as well as cheap Quebec beer and crisp Okanagan Pinot Gris. So the liquor limits are byproducts of another regulatory scheme, and therefore permissible.

Before addressing the constitutionality of s. 134(b), the Court “deliver[ed] a benchslap to the trial judge” for disregarding its 1921 decision in Gold Seal Ltd. V Attorney-General for the Province of Alberta, as Professor Leonid Sirota of the Auckland University of Technology Law School wrote on his blog, Double Aspect. Based on the Bedford and Carter exceptions to vertical stare decisis, the trial judge ignored precedent because of a new historical assessment of the intent behind s. 121. The Court determined this wasn’t sufficient, since “the underlying social context that framed the original legal debate [must be] profoundly altered” (para 31) and such a re-assessment doesn’t do so.

Ironically, Sirota argues, the Court doesn’t uphold Gold Seal either. In that decision, outright tariffs on inter-provincial trade are banned. But post-Comeau, provinces could impose tariffs as long as they’re rationally connected to a regulatory scheme with a non-trade objective. “So much for stare decisis,” he writes.

In a commentary in the National Post, Professor David Schneiderman of the University of Toronto Faculty of Law notes it’s unsurprising the Court gives little weight to the historical context, “to some imagined framing moment derived almost exclusively from the pen of a single British draftsperson.” That is, under the “living tree” interpretation of the Constitution, purported intentions don’t matter all that much.

Professor Malcolm Lavoie of the University of Alberta Faculty of Law argues in a CBC column that the Court could have reached a fairer balance between federal and provincial powers by simply mandating a test more robust than rational connection, such as a test of necessity. “Under this approach, the government of New Brunswick would have had to establish that its prohibition on outside liquor was truly necessary to achieve objectives relating to public health and safety, a much higher bar than the one the Court applied,” he writes.

Furthermore, Lavoie points out that the Court’s interpretation of s. 121 renders it obsolete: under s. 91 of the Constitution Act, 1867, interprovincial trade is a federal head of power. That is, it was already impossible for provincial governments to directly impose tariffs on goods coming in from other provinces.

In the Toronto Star, Dr. Maria Banda, a visiting fellow at the University of Toronto Faculty of Law, has a more positive view of the decision. Comeau ensures that provinces with higher environmental or health standards, for example, don’t risk “being dragged down to the lowest common denominator by those with lax or inexistent regulations,” she writes.

This decision will likely reverberate throughout the country, including in Alberta and British Columbia’s pipeline dispute. Those provinces should see Comeau as a warning “that they’re not going to be able to rely on their own jurisdiction under the Constitution to do things that will either interfere in federal jurisdiction or will interrupt the free flow of natural resources that is normally supposed to occur without discrimination between provinces,” Professor Carissima Mathen of the University of Ottawa Faculty of Law, said in an interview in Maclean’s.

For his part, Schneiderman argues it’s now less likely Alberta’s Bill 12 will be held to be constitutional. The principle aim of the bill, which requires government permission to export petroleum resources, is “to economically harm a recalcitrant province for interfering with Alberta’s ability to get its oil to port,” he writes. And under Comeau, that cannot be countenanced.

So is it time to #FreeTheBeer, #FreeTheGrapes and #FreeTheOil?

Sara Tatelman is the Asper Centre’s 2018 summer research assistant.

Asper Centre at the Supreme Court of Canada Twice Next Month

 

The Asper Centre will be at the Supreme Court of Canada (SCC) as an intervener in two separate cases next month: Gillian Frank v Attorney General of Canada and Spencer Dean Bird v Her Majesty the Queen.

First up on March 16, 2018 is our intervention in Bird, an important case about prisoners’ rights in Canada.  In this case, the appellant was sentenced to a penitentiary term followed by a period of long-term supervision. The Parole Board determined that this supervision would begin with the appellant residing at a community correctional centre. Upon completing his penitentiary term, the appellant arrived to the designated correctional centre to commence the period of long-term supervision but soon left. He was apprehended and charged with failure to comply with the conditions of his long-term supervision. He argued that the residency requirement was unlawful. The trial judge agreed, finding that his being forced to reside in penal institution after completion of his prison term violated his s. 7 Charter rights. The Court of Appeal allowed the appeal, ruling that the trial judge erred in permitting the appellant to collaterally attack the residency requirement.

The Asper Centre factum argues, with regard to the proper application of the collateral attack doctrine, that the Maybrun framework should consider constitutional and access to justice issues. Our factum can be found here.

Less than a week later, on March 21, 2018, the Asper Centre will be intervening in Frank, a case focused on the voting rights of Canadians residing outside of Canada. In Frank, the applicants are Canadian citizens residing in the United States for employment reasons, who intend to return to Canada if circumstances permit. Both applicants were refused voting ballots for the 2011 Canadian General Election since they had been resident outside Canada for five years or more. The applicants sought a declaration that certain provisions of the Canada Elections Act violated their Charter-protected right to vote. A judge of the Ontario Superior Court of Justice declared the impugned provisions of the Act unconstitutional by reason of violating the applicants’ right to vote under s. 3 of the Charter, and the violation was not justifiable under s. 1.

The Asper Centre factum addresses the “social contract” argument that has been used to support revoking a Canadian citizen’s right to vote if they do not live in Canada. Our factum can be found here.