This post is the sixth of a series considering three major issues under the Canadian Charter of Rights and Freedoms: the impact of how the Supreme Court of Canada (SCC) has defined rights; the relationship between rights; and the relationship between guarantees of rights and freedoms and section 1 of the Charter.
I focus the discussion of these issues through the lens of section 3, which guarantees the right to vote and to be eligible to sit in the legislature. Following the exploration of the SCC jurisprudence relating to each of the three issues in relation to section 3, I then consider how the Ontario Superior Court of Justice and the Ontario Court of Appeal applied that jurisprudence in Working Families Ontario v. Ontario (“Working Families I”) and Working Families Coalition (Canada) Inc. v. Ontario (“Working Families II”), both decisions of Morgan J. in the Superior Court, and Working Families Coalition (Canada) Inc. v. Ontario (Attorney General) (“Working Families (ONCA)”), respectively.
Part 1 of the series included the (I) Introduction, (II) a brief summary of the impugned spending provisions of the Election Finances Act (“EFA”) and (III) an overview of the Working Families decisions (see here).
Part 2 began consideration of section 3 of the Charter, specifically the scope of the SCC’s interpretation of section 3 with an Introduction and segment reviewing the jurisprudence (see here). Part 3 considered the relationship between rights, primarily the relationship between section 2(b) and section 3 of the Charter (here). In Part 4, I discussed the impact of the meaning ascribed to section 3’s “right to vote” on the relationship between that section and section 1 (here). In the Conclusion, I placed section 3 in the context of the Charter more broadly by comparing it with some of the other guarantees and bring together the import of the previous discussions (here).
In addition, in the Working Families Morgan J. and the Ontario Court of Appeal decisions address parties’ submissions linking section 3 and section 33 of the Charter and I complete the series with a rundown of those comments in this final post in the series. including section 3 here.
VI. THE WORKING FAMILIES DECISIONS AND THE NOTWITHSTANDING CLAUSE
Almost immediately after Morgan J. issued his decision holding that the amendments to the EFA contravened the Charter under section 2(b) (Working Families I), the Ontario legislature re-enacted the legislation with the addition of section 33 of the Charter, the notwithstanding clause (or override provision). As a result, although it was unconstitutional, the amended EFA could stand and the government did not need to appeal Morgan J.’s decision.
The applicants in the section 2(b) case then challenged the new legislation under section 3 of the Charter, which is not subject to the override. Justice Morgan also heard that case, finding that the impugned provisions did not contravene section 3 (Working Families II). On appeal, the Ontario Court of Appeal overturned Morgan J.’s decision (Working Families (ONCA)).
The applicants had raised section 33 arguments even though the courts were considering section 3, prompting the judges to provide slightly more expansive comments on the courts’ jurisdiction under section 33.
In the background of the Court of Appeal’s consideration of Working Families was the Ford government’s invocation of section 33 in relation to an expected strike by educational workers in November 2022. The legislature had enacted pre-emptive legislation prohibiting the strike and imposing the terms of a contract; the legislation included the notwithstanding clause. Eventually, the parties reached agreement and the government withdrew the legislation.
In the meantime, however, there had been calls for the federal government to intervene in relation to section 33. Commentators urged the federal government to take a reference to the SCC with the objective of seeking a new protocol governing the use of section 33 and even to use the disallowance power in relation to the legislation. (See my Slaw post “The Notwithstanding Clause: Let’s Be Real!”.)
The Court of Appeal heard the appeal of Working Families II in June 2022, before the section 33 invocation and resulting fuss, and released its decision on March 6, 2023, after the commentary on federal intervention in relation to section 33 in the educational workers case.
The responses by both Morgan J. and the Court of Appeal (majority and dissent) to arguments about section 33 in Working Families may be considered an answer to these calls for judicial consideration of section 33.
Section 33(1) of the Charter reads as follows:
33 (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 invocation of section 33 of the Charter has become highly controversial, with its more frequent use in recent years to override fundamental and equality rights. (On the latter, see my April 27, 2021 Slaw post “Challenging Bill 21: The Decision on Section 33 of the Charter (Among Other Things)”).
The Supreme Court of Canada determined the scope of section 33 early on when Quebec invoked It with respect to all its legislation. The SCC held that little is required to ensure that the provision is appropriately invoked, saying “a s. 33 declaration is sufficiently express if it refers to the number of the section, subsection or paragraph of the Charter which contains the provision or provisions to be overridden.” Furthermore, the court does not have jurisdiction to consider the policy decisions leading to the use of section 33. However, one restriction is that it allows only prospective derogation (not retrospective override provisions. (Ford v. Quebec (Attorney General), paras. 33, 35, 36).
The Court also upheld Quebec’s enacting of omnibus legislation to apply the override to all statutes (Quebec had re-enacted already existing legislation to include the override rather than simply, for example, enacting a statute that applied the override to existing legislation). (Ford, para. 35)
The only apparent remedy if the public does not like the use of the override is to show its displeasure by, when the opportunity arises, voting against the government that invoked it or to raise such a fuss over its invocation that the government backs down. This remedy appears to have been effective in convincing the Ford government to rescind its use of section 33 in the case of Bill 28, Keeping Students in Class Act, 2022, pre-empting the educational workers strike and imposing a collective agreement. After five years the override expires, although it can be re-enacted (Charter, ss.33(4) and (5)).
Section 33 is not applicable to section 3. Nevertheless, parties in Working Families did relate section 33 to section 3 in their submissions.
In Working Families II, the Elementary Teachers’ Federation of Ontario, one of the parties challenging the amendments under the EFA, argued, “section 33 has its own internal limitations and cannot be invoked in certain circumstances even with respect to rights under section 2 of the Charter.” The ETFO relied on dictum in Hak c. Procureure générale du Québec, a Quebec Court of Appeal decision dealing with whether it was appropriate to allow new evidence to be introduced at trial in the challenge to Bill 21 (and to order a stay). (Bill 21, now in force, prohibits certain public servants from wearing religious clothing or other religious accoutrements on their jobs.)
The issue in Hak was whether section 33 applies to section 28 of the Charter, which guarantees “Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.” Section 33 itself does not refer to section 28. The Court determined it was a live issue whether section 33 applied to section 28. In the particular case, the argument is that the legislative provisions disproportionately affect Muslim women; therefore, the provisions contravene freedom of religion or equality, as least as far as Muslim women are concerned.
At trial, the judge determined that while the override does not apply to section 28, there were no rights that section 28 could guarantee equally to male and female persons. That is, by using section 33 very broadly, the legislator ensured that there are no longer any legal rights and freedoms that are covered by section 28 of the Charter (Hak, trial decision, para. 874). (Of interest to this post, he did hold that the prohibition against a face covering in the Legislative Assembly contravened section 3 of the Charter (Hak, trial decision, para. 921).
One might take a different approach to this question, since the wording of section 28 specifies the rights and freedoms referred to in the Charter, not the rights and freedoms anyone is actually enjoying. Section 33 does not remove those rights: it makes them non-applicable in a particular legislative context.
Justice Morgan did not only reject the ETFO’s position, but voiced a firm view about the nature of section 33:
While I agree that invoking section 33 to override Charter rights is not a trivial matter, the only structural limitations on the use of the clause are built into its very terms: it allows laws to remain operable “notwithstanding sections 2 and 7 to 15” of the Charter. Other than this limitation on its ambit of operation, the clause has only formal requirements, not substantive ones, controlling its enactment.
In other words, section 33 was originally conceived not as an anti-democratic instrument but as a democracy-fostering mechanism. It was included in the Charter as a counterbalance to what were perceived as anti-majoritarian, judicially enforced Charter norms. That is, it was, and is, a means of bringing Charter matters to the electorate where they otherwise would not go. In that respect, it allows for “accountable public discussion of rights issues.” ….
For these reasons, the ‘notwithstanding’ clause has been described as part of the notional dialogue between legislatures and courts in fine tuning the rights of Canadians. …It is true, as the Applicants and Intervenors stress, that when it comes to voting rights section 33 must be handled with great care in view of government’s “capacity, and often the interest, to limit the franchise.” …Nevertheless, section 33 is not exactly a deviation from the Constitution as the Applicants tend to characterize it. It is, as Justice Bastarache has written, an integral part of the “balance between law-maker and law-reviewer. Each safeguard[s] abuse by the other.” (Working Families II, paras. 15-17; citing Justice Bastarache in “Section 33 and the Relationship between Legislatures and Courts”, (2005) 14 Const. Forum 1; other citations omitted)
At the Court of Appeal, the Ontario Secondary School Teachers’ Federation (OSSTF)
argued that s. 33(3), which limits the validity of an invocation of the notwithstanding clause to five years, places an internal limit on the ability of the legislature to invoke s. 33 to shield legislation that undermines electoral fairness. Such an internal limit, according to OSSTF, arises from: (i) the text of s. 33(3), (ii) the structural primacy of s. 3 in the Charter, and (iii) the norms and conventions for reforming election law affirmed by the unwritten principles of democracy and the rule of law. (Working Families (ONCA), majority, para. 52)
Whatever the merits of these arguments, the Court of Appeal states they “do not justify a conclusion that s. 33 was not validly invoked” in relation to section 2(b).
Section 33(1) expressly exempts s. 3 of the Charter from the ambit of the notwithstanding clause. Section 3’s guarantee of rights is in full force and applicable to the legislation even though it contains the notwithstanding clause. Section 3 is either violated by the legislation or it is not. The scope and importance of the s. 3 rights cannot serve to restrict the operation of the notwithstanding clause regarding other rights to which the Charter says it does pertain. (Working Families (ONCA), majority, para. 55)
The Ontario Court of Appeal explained that it is bound by the SCC’s consideration of section 33 (“s. 33 is subject to a requirement of form only, and that no substantive justification by a legislature for invoking the notwithstanding clause is required”) (Working Families (ONCA), majority, paras. 50 and 56). The dissent concurred in this conclusion (Working Families (ONCA), dissent, para. 145).
I make one last point on section 33. The majority of the Court of Appeal in Working Families (ONCA) noted
… the submission of the intervener Centre for Free Expression reiterating the relationship between s. 33 and s. 3. The “sunset clause” in s. 33(3), which provides for the expiry of an invocation of the notwithstanding clause after five years, ensures any government that relies on this clause must face the electorate, protected by robust voting rights under s. 3, before it can be renewed. This symbiotic relationship between s. 33 and s. 3 militates for a broad and robust interpretation of voting rights under s. 3 to ensure s. 33’s core principle of democratic accountability. (Working Families (ONCA), majority, para. 58; emphasis added)
Without saying so explicitly, the Court of Appeal appeared to agree with this view, reinforcing the importance and liberal interpretation of section 3, although they do not suggest it aids in the interpretation or application of section 33.
Justice Morgan and implicitly the Ontario Court of Appeal, along with Justice Bastarache, perhaps give too much credit to section 33 as a safeguard of democracy. Certainly, it has that potential and for some, it had that intention. A government could invoke it to ensure that there is not a judicial finding that legislation meant to benefit minorities is unconstitutional (or that such a finding would have no effect). However, it can be argued that it has not yet been invoked for that purpose if one thinks of democracy as including protection of minority rights.
It has been used to protect “parental rights”, however. When a trial court held in Good Spirit School Division No. 204 v Christ the Teacher Roman Catholic Separate School Division No. 212 that it was unconstitutional for the Saskatchewan government to fund non-Catholic students attending Catholic school, the government enacted The School Choice Protection Act amending The Education Act, 1995 allowing them to do so that included the override. (It appears the statute did not actually come into force, since it was never apparently proclaimed.) The Saskatchewan Court of Appeal ultimately overturned the trial court’s decision; leave to appeal to the Supreme Court of Canada was dismissed.
If one thinks of democracy primarily or mainly in institutional terms, it is a link to a remnant of parliamentary democracy within a system of constitutional supremacy, on which voters have power to provide an opinion. A negative reaction may discourage a government from re-enacting the override or, indeed, encourage it to withdraw it. So far, there is nothing to support the view that the right to vote under section 3 of the Charter should be a mechanism for challenging the invocation of section 33 as unconstitutional.
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