Ius & Iustitium is pleased to present this guest post by Kerry Sun, Stéphane Sérafin, and Xavier Foccroulle Ménard. Kerry Sun is a graduate of the University of Toronto, Faculty of Law, and a former clerk at the Court of Appeal of Alberta and to Justice Sheilah L. Martin at the Supreme Court of Canada. Stéphane Sérafin is Assistant Professor, Faculty of Law, Common Law Section, University of Ottawa. Xavier Foccroulle Ménard is a graduate of McGill University, Faculty of Law and the University of Toronto, Faculty of Law, and he works at Norton Rose Fulbright LLP.
I. Introduction
In a previous essay, published in the Canadian law journal Constitutional Forum/Forum constitutionnel, we observed that recent debates on common good constitutionalism in the United States and elsewhere have reverberated in Canada.[1] Discussing some misconceptions of the natural law tradition, we alluded there to the differing perspectives on legislative activity that distinguished positivist from common good-inflected accounts of legal interpretation.[2] More recently, controversies have emerged pertaining to section 33 of the Canadian Charter of Rights and Freedoms, a peculiar feature of Canada’s constitutionally entrenched bill of rights that allows a legislature to override judicial interpretations of certain enumerated rights. These offer us an occasion for further reflection on Canadian constitutionalism and the common good, in a more concrete manner.
Section 33, the “notwithstanding clause” of the Charter, provides that:
(1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.
The Charter rights from which the clause permits derogation include fundamental freedoms (freedom of religion, expression, assembly, and association, among others), legal rights, and equality rights. In effect, legislation enacted pursuant to the notwithstanding clause is in at least some sense shielded from judicial review under these Charter rights.[3] Section 33 also includes a sunset clause, which ensures that an exercise of the notwithstanding clause must be renewed by the legislature every five years.[4]
This provision has been the subject of two separate controversies in recent months, both arising from its use by provincial legislatures to insulate legislation from judicial review on the basis of the Charter provisions enumerated above. The first and most contentious concerns the Quebec National Assembly’s invocation of s. 33 to shield a law curtailing the use of certain kinds of religious dress by public servants.[5] The second controversy, and the subject of this post, instead pertains to substantive positions with which most critics of s. 33—at present, usually aligned with the political left—should nominally agree: whether a law limiting pre-election political spending by third party groups violates the Charterguarantee of freedom of expression.[6] It is for this reason we think reactions to this controversy are particularly illustrative of the underlying assumptions about the respective roles of the Charter, the legislature, and the judiciary in Canada’s “culture of rights”, assumptions that generally percolate in disputes over the notwithstanding clause.
As we explain below, it is evident that many critics of the notwithstanding clause assume—wrongly, we believe—that the inability of judges to have the final word on rights is tantamount to an outright denial of those rights. And this view, we suggest, is founded on what amounts to a largely positivist ethos that consigns legislatures to a realm of raw political power and regards legislative activity as intrinsically opposed to rights, which are to be the preserve of their judicial guardians. Properly understood, we argue instead that the notwithstanding clause should be viewed as enshrining a form of coordinate interpretation. Under this approach, ideally, the invocation of s. 33 may be contemplated in those cases where a legislature seeking to advance the common good reasonably disagrees with the judicial interpretation of a rights provision.[7]
II. Election Spending Limits and Their Discontents
In Canada, legislative limits on election spending exist at the federal level, as well as in most provinces and territories.[8]In a 2004 decision, the Supreme Court of Canada upheld the constitutionality of the federal scheme regulating third party election advertising, in a challenge alleging it violated the right to freedom of expression guaranteed in s. 2(b) of the Charter.[9] The Court affirmed “the egalitarian model of elections” as a legitimate aim that justified the law’s limitation of the right under section 1, the Charter’s “reasonable limits” clause[10]—a conclusion that became something of a consensus view among Canada’s political class and was amplified in the wake of the starkly contrasting decision, south of the border, in Citizens United.[11]
In 2017, the province of Ontario, then under Liberal government, enacted amendments to its election financing laws to impose third party political spending limits for the six-month period prior to an election. In 2021, with a new Progressive Conservative government led by Premier Doug Ford in charge, the Ontario legislature enacted another amendment that extended the same spending limits from six months to twelve months prior to the election period.[12] While certain actors objected that these restrictions unduly prevented them from commissioning advertising on their issues of interest, Ford’s government controlled the legislature, and so the bill passed with little difficulty.
The challenge to the new law was instead directed to the courts, where the plaintiff, a coalition of labour unions under the label “Working Families Ontario”, presented arguments very similar to those raised in the 2004 case. Last month, Justice Morgan, hearing the case in the Ontario Superior Court, concluded that the limits on pre-election third party spending were unconstitutional and invalidated them in a judgment given immediate effect.[13] According to the court, the government inadequately justified the imposition of more stringent limitations on political spending, because it failed to establish that a twelve-month (rather than a six-month) restriction was “minimally impairing” of the plaintiff’s expressive freedoms.[14] As a result of the court ruling, Ontario would likely have no spending limits by unions, corporations, or other third parties in place prior to the next election period, slated to begin in the summer of 2022.[15]
Rather than appeal the judgment, Ford’s government immediately introduced new legislation to re-enact the previous law. This time, it invoked the notwithstanding clause to exempt the law from the ambit of certain Charter rights, including the right to freedom of expression raised against it in the Working Families Ontario case. Unsurprisingly, this move aroused condemnation by journalists, legal academics, and practicing lawyers who objected to Ford’s invocation of s. 33 on a number of grounds. Setting aside the harshest reactions, which denounced the law as an election-stealing contrivance (including the ironic contention that the legislation portended the importation of the Citizens United model into Canada), the reactions of these commentators are telling. Although some insisted that the real issue was that Ford never attempted to appeal the judgment in question, most of the rhetoric suggested that the notwithstanding clause was itself wholly illegitimate[16]—despite being part of the Charter and the political settlement that made possible the constitutional entrenchment itself.
Condemnation aside, the Protecting Elections and Defending Democracy Act was passed and received Royal Assent on June 14, 2021.[17] As the Supreme Court of Canada confirmed in a 1988 decision, s. 33 “lays down requirements of form only, and there is no warrant for importing into it grounds for substantive review of the legislative policy in exercising the override authority in a particular case.”[18] Accordingly, the Ontario legislature’s use of s. 33 was entirely in keeping with positive law, at least as it currently stands. Yet, the character and severity of these objections appears to go beyond even a disagreement with the use of s. 33 on grounds of political morality, since many have suggested that the Ford government’s act sounds the death knell of the Charter, and perhaps of Canadian constitutionalism as a whole.[19]
III. Whose Authority?
Whether we accept the conclusions of the critics or not, at stake in these debates is a crucial question: Who decides what the scope of a right is, and whether that right has been transgressed? Does this role fall to the courts, or to the legislature? Might it perhaps fall to both, in a coordinate manner? The trouble here is that critics of the notwithstanding clause often do not understand the debate in these terms. Rather, what they seem to imply is that the inability of courts to review legislation on Charter grounds means that those rights are necessarily subverted and rendered, for all effective purposes, non-existent.
Looking under the surface of this rhetoric, we can discern broadly positivistic underpinnings to this position, in two respects. First, some critics appear to believe that courts are exclusively empowered to determine the content of constitutional rights, and that the inability of courts to have the final say on such matters is sufficient, on its own, to conclude that such rights do not exist. Taking legal rights as solely the emanation of judicial decisions, this view presumes that there is nothing properly juridical underlying the rights enshrined in the Canadian Constitution. The fixation on what the judiciary posits, of course, recalls Oliver Wendell Holmes’ aphorism that law is merely the “prophecies of what the courts do in fact.”[20] These critics thus presuppose that a Charter right is effectively nullified if the legislature derogates from judicial review via the notwithstanding mechanism.
Conversely, the second assumption pertains to the presumptive image of the legislature that appears to be widely shared by those who have objected to the invocation of s. 33 in Ontario. The image casts legislative activity as intrinsically opposed to rights, for it trades on the premise (incorrectly, we think) that the legislature is capable of little more than aggregating individual preferences into a brute majority will.[21] And the image dovetails with the first premise that there is nothing juridical underlying the Charter, by setting up a contest between legislatures (understood to represent arbitrary, majoritarian preferences) and individuals (on this view, holding preferences that may conflict with those of the majority and thus requiring protection from its tyranny). Any legislative recourse to s. 33 would imply, by its very nature, an override of constitutional rights in favour of the sheer force of the unreasoning, majoritarian will that the law expresses.
While the critics of the Ford government’s actions are far from monolithic, both of the above premises can be discerned even in the less extreme objections. Some have argued, for instance, that the real problem in this case was not the use of s. 33, but rather the Ontario legislature’s failure to advance a justification for doing so. This objection is puzzling at first glance, for a justification was in fact given in this case: preserving the fairness and integrity of Ontario’s provincial elections.[22] While it was of course an appeal to political morality rather than to judicial standards, since the Ford government offered it to the public rather than in court, the conventional wisdom has been that recourse to s. 33 can and should be accompanied by a ‘merely’ political rationale. This type of justification is arguably even more pertinent in this case, since, considering the timeline for an appeal, there was a real possibility that the next Ontario election, scheduled for June 2022, would be conducted with no third-party pre-election spending limits in place at all.
Those narrowly claiming that the Ford government’s decision to invoke s. 33 was unjustified in this case, then, are ultimately objecting to the justification offered on account of its political, rather than technical legal character. In this respect, their position is only marginally more acclimating to s. 33 than those who decry the notwithstanding clause as illegitimate for all purposes. Yet the reluctance to accept the justification proffered—in essence, an appeal to the goods furnished under the egalitarian model of elections—still bespeaks a limited regard for the legislature’s capacity to reason about rights. This is an assumption that we do not share, and which we believe explains the main differences with our own view of the issue, in which the notwithstanding clause might even be understood as a mechanism to facilitate the pursuit of the common good.
IV. The Notwithstanding Mechanism and Reasonable Determinations of Rights
By contrast to the position just described, our view of s. 33 is not rooted in a positivist theory of law. Rather, it is informed by a key concept of natural law theories, namely the concept of determination or specification. In the classical tradition, determinatio describes a mode of relation between natural law and positive law, in which the law-maker must reach an authoritative determination or specification of abstract, general principles of natural law in more specific contexts.[23]The choice of a determinatio reflects the nature of law as a work of reason.[24] Through a prudent exercise of reason, the law-maker is free and apt to make a practical judgment in choosing among the many alternatives, the many legitimate and reasonable possibilities, by which the nature law can be concretized.[25] In this way, the ensemble of determined or specified norms constitutive of positive law is ordained to the common good, and they derive their juridical force from their participation in this posited system of human law.[26]
Stated differently, the idea of determination teaches that a law-maker may be faced with some discretion in choosing among many reasonable, alternative specifications of a right. Such a degree of freedom confronts the law-maker because reason, while guiding and bounding the process of translating the general precepts of natural law into a specific determination, does not exhaust the considerations relevant to the process itself.[27] It is within this realm of competing, yet rationally supported, alternatives that we may discern a richer understanding of the rights enshrined in the Charter, which departs from the positivist’s view that a legislature simply subverts a right if it fails to accord with the interpretation offered by a court. And this latter view corresponds, as we have noted, to the assumptions of those who object to the use of s. 33 in this case.
From this perspective, we may conceive the positive rights instantiated in the Charter as incomplete, underdetermined specifications of rights. Incomplete, because they require further specification in many cases by judicial or legislative action. While the interpretation of a rights provision may assist in fixing some contours for the specification of a right, the open-ended rights guarantees articulated in the Charter leave room for reasonable disagreement about what constitutes a “reasonable limit” to an abstract formulation, such as “freedom of expression”. In this respect, Canadian legal scholars, most prominently Professor Grégoire Webber, have argued that our constitutional rights are fundamentally “negotiable”, in the sense that the contours of these underdetermined rights are constituted by legislative and political activity.[28] That is, one can comprehend what is included within the right only when it is realized, concretized in a particular case by an act of specification.
One can readily see the relevance of the classical tradition to our understanding of the dispute over pre-election political spending limits. Given an underdetermined right to “freedom of expression”, reasonable disagreements may arise about the appropriate completion, the full specification, of the right: Are restrictions on political spending an unreasonable determination of the right’s contours? For six months prior to an election? For twelve months? The choice between a six- and twelve-month duration stands as an illustration of determinatio, for the choice is to be made for the common good, but the choosing of one or another duration as more felicitous cannot be resolved by abstract reason alone.
Where multiple reasonable determinations of a right exist, the choice between alternatives may be effected by either a judicial or a legislative act. Under the theory of “coordinate interpretation”, in principle, both courts and legislatures might have some say in determining what the content of Charter rights should be.[29] This is a view that should already be familiar to most jurists working in common law systems, being consistent with an approach prevailing outside the constitutional context: the courts adjudicate disputes and more fully specify common law rights, but the legislature can overrule those decisions when it regards an issue as beyond the legitimate institutional purview of the judicial branch.[30]However, it also relates much more directly to the philosophical underpinnings of the notwithstanding clause.
While the inclusion of s. 33 in the Charter is commonly regarded as merely a political compromise, more recent scholarship reveals a deeper picture. Despite the fact that s. 33 imposes only requirements of form for its exercise, as Professor Dwight Newman explains, the inception of the notwithstanding clause is in fact rooted in communitarian views of the Canadian constitution and ideas about the existence of underlying “moral rights”. At the very least, some of the clause’s framers conceived it as a mechanism to facilitate coordinate interpretation of the Constitution by legislatures and courts, grounded in the concern that the primacy given to certain rights in the Charter would frustrate the pursuit of communal interests, such as the “moral right to basic health care.”[31] Put differently, the notwithstanding clause was animated by the then-prevalent strands of “European toryism” of Canadian political culture, a communitarian outlook that tolerated a degree of state intervention in certain aspects of social life. These underlying philosophies were oriented toward a non-aggregative conception of collective interests, counterbalancing a more American, liberal individualist outlook on rights protection.[32]
Indeed, we may understand this embrace of coordinate interpretation as a prophylactic for the shortcomings of an overly judicialized rights discourse, which may sometimes prescind from questions of the common good.[33] As Michael Foran, drawing on the Case of Prohibitions, has suggested, the judiciary and legislature embody distinct modalities of relation to the common good. While the technical reasoning of the courts reflect the “artificial reason and judgment of the law,” the political branches make choices on the basis of a “natural reason” that draws, in a less inhibited way, upon general considerations of justice and morality.[34] Seen in this light, it should not be surprising that political justifications offered for the use of s. 33 would not, in character or form, resemble the curial justifications—constrained by precedent, doctrine, and the dimensions of the litigated case—with which lawyers are familiar.
In extending pre-election spending restrictions from six months to twelve months, the Ontario legislature preferred one reasonable determination of the right to expressive freedom over another. This act of (re)specification need not have been taken by the Ontario court as an unjustified majoritarian preference, but as a reasoned choice made for the common good,[35] informed by prudential considerations of the balance of interests between individual voters and “pop-up political groups,” trends in political spending, equal access to electoral politics, and citizens’ faith in the democratic process.[36]The re-enactment of the election financing law, under the auspices of the notwithstanding clause, permitted the legislature to reassert its judgment of “natural reason” and avert the loss of the common good.
Far from reflecting a crass, interest-driven political compromise, the notwithstanding clause can thus be understood to reflect higher principles which enjoy a significant degree of currency within the broader Canadian constitutional system.[37] But more than this, the clause also appears to be rooted in a rejection of each of the assumptions we attributed to its critics in part III, above. Not only does it imply a recognition that courts are not necessarily best placed to determine rights, but it also suggests—perhaps more importantly—that legislatures are capable, or at least should in principle be treated as capable, of properly reasoning about the common good in their own way.
[1] Stéphane Sérafin, Kerry Sun & Xavier Foccroulle Ménard, “The Common Good and Legal Interpretation: A Response to Leonid Sirota and Mark Mancini” (2021) 30: Const Forum const 39. An earlier version of this article was published by the Canadian blog Advocates for the Rule of Law<http://www.ruleoflaw.ca/the-common-good-in-legal-interpretation-a-response-to-leonid-sirota-and-mark-mancini/>. On the recent debates of common good constitutionalism, see Conor Casey, “‘Common Good Constitutionalism’ and the New Battle over Constitutional Interpretation in the United States” (2021) Public Law (forthcoming in 2021), available on SSRN: <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3725068>.
[2] Ibid at Section V.
[3] Canadian Charter of Rights and Freedoms, s 33(2), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. See Maxime St-Hilaire & Xavier Foccroulle Ménard, “Nothing to Declare: A Response to Grégoire Webber, Eric Mendelsohn, Robert Leckey & Léonid Sirota on the Effects of the Notwithstanding Clause” (2020) 29 Const Forum const 37; Dwight Newman, “Canada’s Notwithstanding Clause, Dialogue, and Constitutional Identities” in Geoffrey Sigalet, Grégoire Webber, & Rosalind Dixon, eds, Constitutional Dialogue: Rights, Democracy, Institutions (Cambridge: Cambridge University Press, 2019) 209.
[4] Charter, ibid, s 33(3).
[5] Act respecting the laicity of the State, CQLR c L-0.3.
[6] See Election Finances Act, RSO 1990, c E.7, s 37.10.1.
[7] For a similar argument, see e.g. Newman, supra note 3.
[8] See e.g. Canada Elections Act, SC 2000, c 9 at ss. 349 and ff; Election Finances Act, RSO 1990, c E.7; Nunavut Elections Act, SNu 2002, c 17 at ss. 177 and ff.
[9] Harper v Canada (Attorney General), 2004 SCC 33, [2004] 1 SCR 827.
[10] Ibid at paras 62–63.
[11] Citizens United v Federal Election Commission, 558 US 310 (2010).
[12] Bill 254, Protecting Ontario Elections Act, 2021, 1st Sess, 42nd Leg, Ontario, 2021 (assented to 19 April 2021), SO 2021, c 5.
[13] Working Families Ontario v Ontario, 2021 ONSC 4076.
[14] Ibid at paras 71–73.
[15] The Ontario Superior Court declined to suspend the declaration of invalidity, as courts have done in other Charter cases.
[16] See Geoffrey Sigalet & Ben Woodfinden, “Opinion: Doug Ford’s use of the notwithstanding clause stands up for democracy” National Post (15 June 2021), online: <https://nationalpost.com/opinion/opinion-doug-fords-use-of-the-notwithstanding-clause-stands-up-for-democracy>.
[17] Protecting Elections and Defending Democracy Act, 2021, SO 2021, c 31.
[18] Ford v Quebec (Attorney General), [1988] 2 SCR 712 at 740.
[19] See another response to these critics in Sigalet & Woodfinden, supra note 16.
[20] Oliver Wendell Holmes, Jr., “The Path of the Law” (1897) 10:8 Harv L Rev 457 at 461.
[21] For a recent work challenging such premises, see Grégoire Webber et al, Legislated Rights: Securing Human Rights through Legislation(Cambridge: Cambridge University Press, 2018).
[22] See Working Families Ontario v Ontario, supra note 13 at paras 47–48; Holly McKenzie-Sutter, “Ontario government to invoke notwithstanding clause over campaign finance judgment” Global News (10 June 2021), online: <https://globalnews.ca/news/7935658/ontario-notwithstanding-clause-campaign-finance-judgment/>.
[23] John Finnis, Aquinas: Moral, Political, and Legal Theory (New York: Oxford University Press, 1998) at 266–71.
[24] Saint Thomas Aquinas, Summa theologiae, vol I-II, q. 90 a. 3, q. 92 a. 2, q. 95 a. 2, and q. 96 a. 5 [ST].
[25] Ibid; Javier Hervada, Introduction to the Study of Canon Law (Montréal: Wilson & Lafleur Ltée, 2007) at 33–34;
[26] Aquinas, supra note 24 at q. 95 a. 3 and 4.
[27] Ibid, at q. 95 a. 3.
[28] See Grégoire CN Webber, The Negotiable Constitution: On the Limitation of Rights (Cambridge: Cambridge University Press, 2009); Frank v Canada (Attorney General), 2019 SCC 1 at para 142, Côté and Brown JJ (dissenting).
[29] Newman, supra note 3 at 219. See also Geoffrey Sigalet, Grégoire Webber & Rosalind Dixon, “The ‘What’ and ‘Why’ of Constitutional Dialogue” in Sigalet, Webber & Dixon, eds, Constitutional Dialogue, supra note 3, 1; Geoffrey Sigalet, “On Dialogue and Domination” in Sigalet, Webber & Dixon, eds, Constitutional Dialogue, supra note 3, 85.
[30] See e.g. Robert Stevens, Torts and Rights (Oxford, Oxford University Press, 2007) at 331.
[31] Newman, supra note 3 at 214–27.
[32] See Glenn D Joyal, “The Charter and Canada’s New Political Culture: Are We All Ambassadors Now?” (13 January 2017), online (blog): Advocates for the Rule of Law <http://www.ruleoflaw.ca/the-charter-and-canadas-new-political-culture-are-we-all-ambassadors-now/>.
[33] See Bradley W Miller, “Majoritarianism and Pathologies of Judicial Review” in Webber et al, Legislated Rights, supra note 21, 181 at 198.
[34] Michael Foran, “Constitutional Legitimacy, Artificial Reason, and the Common Law” Strathclyde Law Blog (9 October 2020), online: <https://www.strath.ac.uk/humanities/lawschool/blog/constitutionallegitimacyartificialreasonandthecommonlaw/>.
[35] See Richard Ekins, “Legislation as Reasoned Action” in Grégoire Webber et al, Legislated Rights, supra note 21, 86 at 92; Richard Ekins, The Nature of Legislative Intent (Oxford: Oxford University Press, 2012) at 112–21.
[36] See Working Families Ontario, supra note 13 at para 47.
[37] The four “fundamental and organizing principles” of the Canadian Constitution as identified by the Supreme Court of Canada in the Reference re Secession of Quebec, [1998] 2 SCR 217 at para 32, are: “federalism; democracy; constitutionalism and the rule of law; and respect for minorities.”
