{"id":3330,"date":"2020-02-25T15:27:43","date_gmt":"2020-02-25T15:27:43","guid":{"rendered":"https:\/\/www.ruleoflaw.ca\/?p=3330"},"modified":"2020-02-25T15:27:44","modified_gmt":"2020-02-25T15:27:44","slug":"nothing-to-declare-a-response-to-gregoire-webber-eric-mendelsohn-robert-leckey-and-leonid-sirota-on-the-effects-of-the-notwithstanding-clause","status":"publish","type":"post","link":"https:\/\/www.ruleoflaw.ca\/nothing-to-declare-a-response-to-gregoire-webber-eric-mendelsohn-robert-leckey-and-leonid-sirota-on-the-effects-of-the-notwithstanding-clause\/","title":{"rendered":"Nothing to Declare: A Response to Gr\u00e9goire Webber, Eric Mendelsohn, Robert Leckey and L\u00e9onid Sirota on the Effects of the Notwithstanding Clause"},"content":{"rendered":"\n

The\u00a0following\u00a0is\u00a0the\u00a0first\u00a0in\u00a0a\u00a0two-part\u00a0series.\u00a0Part\u00a0II\u00a0will\u00a0be\u00a0published\u00a0next\u00a0week.<\/em><\/p>\n\n\n\n

Introduction<\/h4>\n\n\n\n

In the wake of the legal challenge to Quebec\u2019s law on state secularism,[1]<\/a> Professor Gr\u00e9goire Webber, lawyer Eric\nMendelsohn and Dean Robert Leckey jointly published a post in which they argue\nthat the invocation of the \u201cnotwithstanding clause\u201d in s.33 of the Canadian\nCharter of Rights and Freedoms does not preclude a court from making a\ndeclaration <\/strong>on the \u201cconsistency\u201d of the legislative provisions for which\ns.33 has been invoked with the constitutional rights from which they validly\nderogate.[2]<\/a> Let us first review their arguments.<\/p>\n\n\n\n

Summary of the Five Arguments to be Assessed<\/h4>\n\n\n\n

Their first and main argument is textualist, if\nnot literalist. It is based on the wording of subsection 33(2), which states: <\/p>\n\n\n\n

An Act or a provision of an Act in respect of which a\ndeclaration made under this section is in effect shall have such operation as\nit would have but for the provision of this Charter referred to in the\ndeclaration.<\/p>\n\n\n\n

The argument is that, without ever denying the legal effects that\nvalidly derogating legislative provisions produce notwithstanding certain\nsections of the Charter, the courts should be authorized to make declarations\nof inconsistency between the former and the latter.  <\/p>\n\n\n\n

Their second argument is that, in the leading case on section 33 of the Canadian<\/em>\nCharter<\/em>\u2014the Ford<\/em>[3]<\/a> decision\u2014the Supreme Court of Canada \u201cwas\nnot asked about, nor did it rule on, the significance of shielding a law\u2019s\noperation.\u201d<\/p>\n\n\n\n

Their third argument looks to find evidence of the existence of the alleged\njudicial power in the 2010 decision of the Supreme Court of Canada in Canada\nv. Khadr<\/em>.[4]<\/a>\nIn a 2008 decision,[5]<\/a> Omar Khadr had previously obtained an order\nfrom the Canadian justice system requiring the Canadian government to provide\nhim with transcripts of the interrogations he was subjected to at Guantanamo\nBay by Canadian officers, who were aware that Khadr had been subjected to a\nsleep deprivation technique. This time, he sought judicial review of the\nCanadian government\u2019s decision to refuse to petition the Unites States authorities\nfor his return to Canada. For a variety of reasons stemming from evidentiary\nuncertainty, the limits of its institutional jurisdiction in foreign affairs and\nthe \u201cneed to respect the prerogative powers of the executive,\u201d[6]<\/a> the\nCourt concluded that it was not appropriate to grant the order sought. Instead,\nthe Court thought best to limit itself to making a declaration, including of\nthe fact that Canada has \u201cdeprive[d] him of his right to liberty and security\nof the person guaranteed by s. 7 of the Charter<\/em>, contrary to the\nprinciples of fundamental justice\u201d[7]<\/a> (which is a condition of s. 7 violation). Our colleagues\u2019\nargument is therefore that the Khadr<\/em> decision is evidence that courts\ncan always make declarations rather than grant alternative relief. According to\nthem, the Khadr<\/em> decision demonstrates that judicial declarations of mere\n\u201cinconsistency\u201d of valid exception-to-rights provisions with the very provisions\nof the Charter from which they so derogate would be \u201cconsistent with what the\ncourts already do.\u201d<\/p>\n\n\n\n

Their fourth argument is again illustrative, yet this time drawn from\nforeign legal systems, in this case the law of the United Kingdom, New Zealand\nand Australia, which \u201call provide that judges may declare legislation\nincompatible with human rights, but such declarations do not affect the\noperation of legislation.\u201d<\/p>\n\n\n\n

Jumping into the playing field a dozen days after <\/strong>the publication of Professor Webber et\nal.\u2019s post, Professor Leonid Sirota intervened in the debate supporting\nthe above arguments, while adding another of his own: \u201cOne provision that is\nnot subject to section 33 is section 24, the Charter<\/em>\u2019s internal remedial\nprovision.\u201d[8]<\/a> While Professor Sirota had in this only wanted\nto advance the claim that the exercise of the power provided for under section\n33 would not prevent courts from making \u201cdeclarations of inconsistency,\u201d Dean\nLeckey used this new fifth argument in a short piece he published soon\nthereafter to bring forth an even bolder one: the fact that statutory\nprovisions validly derogate from certain rights found in the constitutional\ncharter would not preclude the remedy for damages which the case law[9]<\/a> recognizes for, as section 24(1) of the Charter\n<\/em>reads, \u201c[a]nyone whose rights or freedoms, as guaranteed by this Charter,\nhave been infringed or denied.\u201d[10]<\/a> Our colleague invokes here\nthe distinction accepted in administrative law between what is invalid and what\ngives rise to civil liability.[11]<\/a> In his view, because state action that is\nlegally valid may nevertheless give rise to civil liability, it is conceivable\nthat the state may also incur civil liability by enacting legislation that is validly\n\u201cinconsistent\u201d with rights (from that legislation is validly excepted from).
\n<\/strong><\/p>\n\n\n\n

Assessment of the First Argument on Textual Clarity<\/h4>\n\n\n\n

How should we assess the strength of these aforementioned arguments? Let\nus begin by pointing out that mere literal interpretation is fortunately not accepted\nin our law. Of course, the text of the supreme law[12]<\/a> can\nnever be ignored,[13]<\/a>\nand that which is absolutely clear must prevail, but we still need to know over\nwhat it prevails.In other words, the constitutional interpreter is not\nallowed to just ignore the scheme of the provisions and structure of the\nsupreme law, which the Supreme Court has referred to as an \u201carchitecture\u201d[14]<\/a> and from which it even allows itself to infer \u201cunwritten\nprinciples.\u201d[15]<\/a> <\/p>\n\n\n\n

Indeed, the interpretive method of our supreme law remains irreducibly\nthat of the meaning given to it by the purpose (telos<\/em>) of the provisions\nto be interpreted, a method that the Supreme Court thus calls \u201cpurposive.\u201d[16]<\/a> This\n\u201cpurpose\u201d could also be represented as a function, so as to speak of a functionalist\nmethod. In any case, the clarity of the text of a constitutional provision can\nonly reveal its object, or function. If any doubt as to the function of one or\nmore provisions remains after reading the supreme law, the interpreter is\nentitled to consider the \u201cextrinsic\u201d evidence of the framers\u2019intention.\n<\/p>\n\n\n\n

Taken in isolation, the use of the words \u201chas the effect that it would\nhave except for the provision of the Charter\u201d in subsection 33(2) of the Canadian<\/em>\nCharter<\/em> is nowhere close to being sufficient in revealing the function\nof section 33, which alone can give it meaning. This textual excerpt is\ntherefore on its own unclear. Does it become clear in light of the scheme of\nthe section\u2019s provisions? The exclusion of any substantive review \u2013 confirmed\nby the Supreme Court in Ford<\/em>[17]<\/a> \u2013,\nthe requirement of an express declaration of intent, and the temporary nature\nof the exception all support the argument that the function of section 33 is to\nallow legislators to exempt provisions from any judicial debate on their\nrespect for the constitutional rights from which they derogate. Should there\nremain any doubt in the mind of the interpreter, consideration of evidence of\nthe intention of the framers the Constitutional Act, 1982<\/em> itself, should\nbe sufficient to dispel it. This evidence seems indeed rather overwhelming, at\nleast as provided by Professor Dwight Newman.[18]<\/a> After\nanalyzing the evidence, Professor Newman concluded that the intent behind\nsection 33 was that \u201clegislative bodies [would] have the legal authority to\nsubstitute their view of a particular rights conflict or rights interpretation\nfor the view at which courts have arrived.\u201d[19]<\/a>\nFor us, it could hardly be clearer.<\/p>\n\n\n\n

Assessment of the Second Argument on the Ford <\/em>Decision<\/h4>\n\n\n\n

The negative argument based on the Ford<\/em> decision leaves us\npuzzled. In this case, the Supreme Court never contemplated making any declaration\nabout the relationship of section 58 of Quebec\u2019s Charter of the French\nLanguage<\/em>[20]<\/a> to s.2(b<\/em>)\nof the Charter, guaranteeing freedom of expression, since that statutory\nprovision was protected by a declaration of exception to ss.2 and 7 to 15 of the\nCharter, a declaration that was valid and still in force. Moreover, in\ndistinguishing the exception<\/em> to rights from the limitation<\/em> of\nrights under s.1, the Supreme Court in this case confirmed that, unlike the exception,\nthe limitation could not have the effect of totally suspending the right with\nregard to the limitating measure. [21]<\/a> Finally, this decision went so far as to admit the possibility of using\nan \u201comnibus notwithstanding clause\u201d to state that all legislation<\/em> from\nthe same provincial legislature or Parliament shall continue to operate\nnotwithstanding ss.2 and 7 \u2013 15 of the Charter. This all indicates that the\nCourt was very much alive to the meaning of s.33 and its significant legal\neffects: its use suspends, or sets aside, the right in relation to a variable\nand unlimited number of identified, or identifiable, provisions, so that, on\nthe substantive relation between that right and these provisions, courts simply\nhave nothing to declare.<\/p>\n\n\n\n

Assessment of the Third Argument on the Khadr <\/em>Decision<\/h4>\n\n\n\n

In our view, the illustrative argument from the Khadr <\/em>case also\nfails. Courts can obviously declare a violation of rights. So far, nothing new\nhas been said. The most relevant question that preoccupies us is whether they may,\nor even logically can, declare the hypothetical, virtual \u201cinfringement\u201d or\n\u201cdenial\u201d of constitutional rights that have been temporarily suspended in\nrespect of particular legislative provisions. Put another way, whether they can\ndeclare the \u201cinconsistency\u201d of particular legislative provisions with rights\nthat are validly excepted from. In the Khadr<\/em> case, section 7 had not\nbeen derogated from by means of valid applicable statutory provisions. Had this\nbeen the case, the Court would not have made its declaration. Of course, courts\ncan declare that Charter rights have been violated by the state and, as within\ntheir jurisdiction, they can do so rather than granting the remedy sought. <\/strong>Can\nthey thereby declare the virtual \u201cinconsistency\u201d of exception-to-rights\nprovisions with the very constitutional rights from which they are validly\nexcepted? We do not think so, but if one thing is certain, it is that the\njurisprudence does not provide us with any example of this. There would be no\npoint, then, in objecting here with decisions such as Manitoba Metis\nFederation<\/em>[22]<\/a>\u2014at\nleast so long as the Supreme Court is correct in referring to the principle of\nthe \u201chonour of the Crown\u201d as a genuinely legal principle which \u201cspeaks to how<\/em> obligations\nthat attract it must be fulfilled\u201d[23]<\/a>\u2014or\nEwert v. Canada<\/em>.<\/a>[24]<\/a> In the former case, the Supreme Court issued a declaration of\nnon-fulfillment of constitutional obligations by the federal Crown while\npersonal remedies claims had lapsed.[25]<\/a>\nIn the latter case, the Court made a declaration of breach of an obligation bestowed\non the Correctional Service of Canada by federal statute, where the statutory\ngrievance mechanism provided to the plaintiff had not been effective.[26]<\/a>\nIn neither case had the correlative legal right or interest been legally\ninexistent or of no substantive force at the time of the facts. In both, the\ndeclaration was made in order to ensure that a right or legal interest was not\nwithout any remedy, not in a way as to grant a remedy without a right or legal\ninterest at the time of the facts.
<\/p>\n\n\n\n

\n\n\n\n

[1]<\/a> Act respecting the laicity of the State<\/em>, CQLR c L-0.3.<\/p>\n\n\n\n

[2]<\/a> Gr\u00e9goire Webber, Eric Mendelsohn et Robert\nLeckey, \u201cThe faulty received wisdom around the notwithstanding clause\u201d (10 May\n2019) Policy Options Politiques<\/em>, online : <https:\/\/policyoptions.irpp.org\/magazines\/may-2019\/faulty-wisdom-notwithstanding-clause\/<\/a>>. <\/p>\n\n\n\n

[3]<\/a> See Ford v Quebec (Attorney General)<\/em>,\n[1988] 2 SCR 712 [Ford<\/em>].<\/p>\n\n\n\n

[4]<\/a> Canada (Prime Minister) v Khadr<\/em>, 2010 SCC 3, [2010] 1 SCR 44 [Khadr<\/em>].<\/p>\n\n\n\n

[5]<\/a> Canada (Justice) v Khadr<\/em>,\n2008 SCC 28, [2008] 2 SCR 125.<\/p>\n\n\n\n

[6]<\/a> Khadr<\/em>, supra<\/em>\nnote 4 at para 46.<\/p>\n\n\n\n

[7]<\/a> Ibid<\/em> at para 48.<\/p>\n\n\n\n

[8]<\/a> L\u00e9onid Sirota, \u201cConcurring Opinion\u201d (23 May\n2019) Double Aspect<\/em>, online <https:\/\/doubleaspect.blog\/2019\/05\/23\/concurring-opinion\/<\/a>>. <\/p>\n\n\n\n

[9]<\/a> See Vancouver (City) v. Ward<\/em>, 2010 SCC\n27, [2010] 2 SCR 28.<\/p>\n\n\n\n

[10]<\/a> The Constitution Act, 1982, Schedule B to the\nCanada Act 1982 (UK), 1982, c 11 at para 24(1) [Canadian Charter of Rights and Freedoms<\/em>] ; Robert Leckey, \u201cAdvocacy\nNotwithstanding the Notwithstanding Clause\u201d (2019) 8:4 Constitutional Forum\nConstitutionnel<\/em> 1.<\/p>\n\n\n\n

[11]<\/a> See Canada (Attorney General) v TeleZone\nInc<\/em>., 2010 SCC 62, [2010] 3 SCR 585.<\/p>\n\n\n\n

[12]<\/a> See Maxime St-Hilaire, Patrick F. Baud and\nElena S Drouin, \u201cThe Constitution of Canada as Supreme Law: A New Definition\u201d\n(2019) 28:1 Constitutional Forum constitutionnel<\/em> 7.<\/p>\n\n\n\n

[13]<\/a> We would oppose any conception of the \u201cliving\ntree\u201d doctrine that would be forgetful of the \u201cnatural limits\u201d part the famous\nanalogy made in \u201cEdwards<\/em>\u201d (Re \nSection  24  of \nthe  BNA  Act<\/em>, \nsub  nom Edwards  v \nCanada  (Attorney  General)<\/em>, [1930] AC 124 (PC), at 106\u20137)and that would allow itself to simply ignore the text of the supreme law.<\/p>\n\n\n\n

[14]<\/a> Reference re Senate Reform<\/em>, 2014 SCC 32 at paras 26\u201327, [2014] 1 SCR 704.<\/p>\n\n\n\n

[15]<\/a> Reference re Secession of Quebec<\/em>, [1998] 2 SCR 217.<\/p>\n\n\n\n

[16]<\/a> See Hunter et al. v Southam Inc<\/em>.,\n[1984] 2 SCR 145. <\/p>\n\n\n\n

[17]<\/a> See Ford<\/em>, supra<\/em> note 3 at para 33.<\/p>\n\n\n\n

[18]<\/a> See Dwight Newman, \u201cCanada\u2019s Notwithstanding\nClause, Dialogue, and Constitutional Identities\u201d in <\/em>Geoffrey Sigalet,\nGr\u00e9goire Webber and Rosalind Dixon, eds., Constitutional Dialogue: Rights,\nDemocracy, Institutions<\/em> (Cambridge: Cambridge University Press, 2019) at\n209\u201334.<\/p>\n\n\n\n

[19]<\/a> Ibid<\/em> at 227.<\/p>\n\n\n\n

[20]<\/a> CQLR c C-11.<\/p>\n\n\n\n

[21]<\/a> Ford<\/em>, supra<\/em> note\n3 at paras 65\u201366.<\/p>\n\n\n\n

[22]<\/a> Manitoba Metis Federation Inc. v Canada (Attorney General)<\/em>, 2013 SCC 14, [2013] 1 SCR 623 [Manitoba\nMetis Federation<\/em>].<\/p>\n\n\n\n

[23]<\/a> Ibid <\/em>at para 73.<\/p>\n\n\n\n

[24]<\/a> Ewert v Canada<\/em>, 2018\nSCC 30, [2018] 2 SCR 165 [Ewert<\/em>].<\/p>\n\n\n\n

[25]<\/a> See Manitoba Metis Federation<\/em>, supra<\/em>\nnote 21 at\nparas 6\u20139, 143\u201344.<\/p>\n\n\n\n

[26]<\/a> See Ewert, supra<\/em> note 24 at para 7, 27, 83\u201384.<\/p>\n","protected":false},"excerpt":{"rendered":"

The\u00a0following\u00a0is\u00a0the\u00a0first\u00a0in\u00a0a\u00a0two-part\u00a0series.\u00a0Part\u00a0II\u00a0will\u00a0be\u00a0published\u00a0next\u00a0week. Introduction In the wake of the legal challenge to Quebec\u2019s law on state secularism,[1] Professor Gr\u00e9goire Webber, lawyer Eric Mendelsohn and Dean Robert Leckey jointly published a post in which they argue that the invocation of the \u201cnotwithstanding clause\u201d in s.33 of the Canadian Charter of Rights and Freedoms does not preclude a court …<\/p>\n","protected":false},"author":13486,"featured_media":1821,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[36,34],"tags":[107,531,375,345,532],"_links":{"self":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/3330"}],"collection":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/users\/13486"}],"replies":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/comments?post=3330"}],"version-history":[{"count":3,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/3330\/revisions"}],"predecessor-version":[{"id":3333,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/3330\/revisions\/3333"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/media\/1821"}],"wp:attachment":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/media?parent=3330"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/categories?post=3330"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/tags?post=3330"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}