The Prime Minister of Canada, Justin Trudeau, wants to regulate the use of the notwithstanding clause. In other words, he wants to change the Constitution. However, rather than respecting the rules of law and the procedures associated with this type of review, Mr. Trudeau prefers, unsurprisingly, to rely on the judges of the Supreme Court, who are unilaterally chosen by the federal government.
Far from being a simple technical dispute over the interpretation of a mechanism adopted under the sign of the compromise in 1982, this case could lead to a profound change in the balance between political and judicial powers.
Asking the judges of the highest court of the federation, rather than elected officials, to modify the Canadian Charter is actually very convenient. This spares the Prime Minister lengthy negotiations and difficult debates over the many constitutional improvements that Canada needs. To justify its approach, the Trudeau government claims that it is only a simple dispute of interpretation about the terms of the derogation.
However, the Supreme Court has already clearly ruled on the scope of this power. In 1988, the Ford decision confirms the validity of the most preventive and systematic of derogations: the generalized derogation of the Lévesque government, enshrined in an omnibus law, following the adoption of the Constitution Act of 1982 without the consent of the National Assembly. The position of the Supreme Court is then crystal clear: “There is no reason to require more under section 33.”
A clear provision, a unanimous Court, an unequivocal case in point: the Ford judgment of 1988 leaves no room for ambiguity.
The passage of time changes nothing. The notwithstanding clause remains an original compromise that makes it possible to reaffirm — if necessary — Canada’s ties to the Westminster tradition of parliamentary sovereignty. Admittedly, the Constitution Act of 1982 considerably enhanced and increased the influence of the courts in defining the balance of rights. On the other hand, it also provided for opposable limits to this judicial counter-power. Changing the scope of these limits is undeniably an amendment to the Charter.
The choice of the arbitrator
In this game, the Trudeau government nevertheless enjoys a considerable structural advantage: the choice of the interpreter of the rules which it wishes to see revised. A manifest federal deficit, it is thus up to a single partner in the federation (the federal government) to appoint — at its sole discretion — all the judges of the superior courts and courts of appeal, which are increasingly setting limits to the range of provincial legislative and governmental choices.
However, since the departure of Justice Moldaver and the appointment of Justice O’Bonsawin last summer, the Supreme Court is now composed mainly of judges selected by the Liberal government of Justin Trudeau. The addition of a preliminary administrative assessment of candidates has not changed this exorbitant power of the federal government.
As journalist Daniel Leblanc has clearly shown, with supporting sources, Justin Trudeau did not hesitate to reject the candidacy of Manitoba judge Glen Joyal, who was recommended by the administrative process as well as by the Minister of Justice, Jody Wilson-Raybould, in favor of another candidacy deemed philosophically more “liberal”, that of Judge Sheilah Martin. For the Prime Minister, Judge Joyal’s fault was to have shown deference and attachment to the sovereignty of Parliament during a prestigious lecture given to the legal community.
This lack of federalism in the procedure for appointing judges is increasingly problematic. Indeed, the influence of the latter increases as the prescriptions and constraints derived from their interpretation of the charters of rights extend.
A balance to be preserved
Justin Trudeau says he fears abuse and the trivialization of the use of the derogation. If this fear is legitimate, it should nevertheless be remembered that the action of political actors is already largely framed by federalism, the rest of the constitutional framework and, ultimately, by voters. It would be a very inopportune remedy to further limit their ability to act with a new form of concentration of powers in the courts.
Jurisprudence is not infallible. There is no single definition of the ideals enshrined in the Constitution. Elected officials and voters have a place and a role to play in this debate. Behind the interpretative and technical constraints resulting from judicial work, discretionary choices remain. Otherwise, how can we explain that in just a few years, the Supreme Court of Canada has reached radically contradictory decisions, in particular on the right to strike of public sector employees or on assisted dying, and this, opportunity for decisions rendered with narrow majorities?
As such, Justin Trudeau readily acknowledges that the Supreme Court of the United States has taken a wrong turn in its recent reversal of interpretation of the right to abortion. However, while he deplores the excesses of an American system where the “last word” belongs to the judges, Prime Minister Trudeau defends in the same breath a strengthening of this power for Canadian judges. He will probably say that the problem of the United States lies elsewhere, that is to say in the deficiencies and dysfunctions of the nomination process. That said, it is hard to see how the rules of the game of unilateral federal appointments place Canada safe from such abuses…
In short, judges, like politicians, are not immune to errors. In front of his activists who wanted to put an end to section 33 of the Canadian Charter, Jean Chrétien had once made these wise remarks: [La dérogation] is not as bad as you think… Without it, you leave all decisions in the hands of the court. If you have a good yard, no problem. But the Supreme Court can make mistakes. They are judges. They are named. It’s not a perfect system. (Spector, 2003)
The waiver allows Canada not to put all of its eggs in one basket. It acts as a legitimate reminder of parliamentary sovereignty. At the same time, it reduces the risk of excessive concentration and excessive politicization of an all-powerful Supreme Court, all thanks to a mechanism limited in time (five years maximum) and renewable after democratic control by voters.
All in all, the notwithstanding clause is one of the last mechanisms that distinguishes Canadian constitutionalism from that of the United States. This tool guarantees an institutional balance and enhances the respective contribution of the courts and elected assemblies in the definition of rights. By the same token, the derogation promotes federalism by stating common ideals, but without imposing standardization. It gives a margin of autonomy to the National Assembly of Québec by allowing it to assert the distinct character of a fragile and minority nation in North America.