dailynewsnblog
In Alberta recently the UCP government has written a number of laws which undermine the role of the courts as a check on power. There are several strategies that are being deployed, and all of them ultimately attempt to make it impossible for citizens who are affected by these laws to access any kind of remediation for the harms done by the law.
There are several strategies in play that we need to talk about. Some of them I have already talked about in considerable depth here, the others I have not addressed yet, and this post will serve as a jumping off point for thinking about these things.
The strategies that are being used are:
- The Notwithstanding Clause
- Final Decision Rests With The Minister
- Self-Indemnification Clauses
The Notwithstanding Clause
I’ve talked about The Notwithstanding Clause (S33) in The Charter of Rights and Freedoms and its application at length on this blog. At the core of the matter, I agree strongly with the position articulated by the Attorney General of Canada in Montreal English School Board v. Quebec Attorney General. Using S33 as an override in all but the most urgent and serious of situations is an abuse of power.
At the end of the day, in Alberta, the uses of S33 have been to squelch any opposition to the matters that the government is legislating on. The government’s application of S33 to Bills 26, 27, and 29 is little more than an admission that the laws themselves not only violate The Charter broadly, but that they fully expect the Supreme Court of Canada (SCC) to rule along the lines the Attorney General of Canada is advocating for – a ruling which would make the government’s intent to extinguish rights long term with those laws utterly invalid.
The use of S33 in Bill 2 (Teachers Back To Work legislation) is used to prevent teachers from further protests of the government’s imposition of a settlement that teachers had rejected by wide margins multiple times. This is also concerning because it suggests the government not only wishes to impose a solution, but that it has no desire whatsoever to hear protests from the affected parties (much less deal with pesky things like court actions).
In my opinion, using S33 in the manner described above is not only morally and ethically wrong, but it is in fact illustrative of the fact that no exercise of power should happen in a manner that it cannot be checked somehow.
Final Decision Rests With The Minister
In Bill 14, we see a second and equally concerning strategy for undermining the courts as a check on the exercise of power. This is a tactic where the government writes legislation where “final decisions” on some matters are placed within the direct power of the minister.
“What’s wrong with that?”, you might ask. My response is “plenty”. The problem is that this places the politicians in the position of not only writing the laws, but also makes them the executors of those laws. Normally, the powers of executing laws are delegated to the public service (the bureaucracy), and the judiciary when it comes to matters of interpretation.
Granting politicians direct control over the application of any law is a very dangerous thing to do. Politicians are not trained to apply the law impartially, and in many cases they act in their own best interests (especially with an eye towards the next election – remember – what is “popular” or what their “base” wants can be a long ways from what is reasonable or just.
There can be rare occasions where “appeal to the minister” to override a decision made by the bureaucracy might be reasonable, but those occasions must be exceptional and rare. Simply placing final decision making in the hands of the politicians as Bill 14 does risks turning the application of law into an exercise in partisan or ideological dogma.
Self Indemnification Clauses
A “self-indemnification” clause is one where the government slides into a piece of legislation a set of paragraphs which make it “illegal” to sue the government for any harm that might be done by the legislation and its application. We see this in Alberta’s Bill 2, where at the end of the whole piece of legislation, there is a series of clauses under “No Cause For Action”.
Again, except in the rarest of circumstances, I consider these clauses to be problematic because it is the government insulating itself from scrutiny. It should not be the case that the government can simply “legislate itself out of accountability for its actions”. Accountability doesn’t only exist at the ballot box – it has to exist throughout our system of government because governments wield exceptional power and the existence of checks and balances to hold a government back from excessive use of its powers is essential to safeguard all citizens.
What Do We Do?
There are multiple angles to these issues. The Notwithstanding Clause seems likely to become much more constrained by the case currently before the SCC. This is good news, and reflects that our current federal government is still actively engaged in protecting the rights guaranteed in the Charter. However, we must also keep pushing our governments as all levels not only to uphold the Charter, but in fact to defend it vigorously.
In a similar vein, we must be prepared to lobby the Lieutenant Governors and Governor Generals of our country to apply their reserve powers to legislation that so clearly violates fundamental rights. I disagree with quite strongly with the argument that because those “reserve powers” haven’t been used in 80 years that they are effectively “dead letter law”.
A Little Legal Hypothesizing
What about these other “escape hatches” that we are seeing conservative legislators using? I see these as subject to challenge on several levels. What follows is a series of threads of thought that I think could become the basis for challenging these clauses that serve to exempt the government from scrutiny.
Much of the justification for these clauses rests on a very expansive reading of the notion of “Parliamentary Sovereignty”. To be clear, Parliamentary Sovereignty is a convention, not an absolute written piece of law. That’s a good thing from my perspective, because it can be challenged as such with some reflection on other aspects of our systems of government including similarly conceptual ideas such as “fundamental justice” (also a convention rather than written law).
There’s a primary point here that the governments often write these clauses broadly – so as to ensnare as many hypothetical cases as possible so they can claim that any challenge must be discarded. On appeal of such a dismissal, I think an argument should be made that such clauses are invalid on their face because they prevent those harmed by the law from having their case heard and weighed appropriately. The constitutional principle here being that the courts sit in a role of reviewing and interpreting laws, and that although Parliamentary Sovereignty grants some discretion, legislatures do not enjoy an absolute shield as that denies those harmed by the law appropriate recourse.
This applies just as much to situations where the government delegates final decision authority to ministers of the crown. Political considerations are not always going to arrive at a conclusion that are “just” – we saw this with the treatment of Maher Arar where political considerations ruled the day, and the courts ultimately ended up awarding him millions in compensation as a result.
A court may well find that the harms done by the law are justified within the scope of the law, but citizens should have access to the courts to make that determination when and as needed. If we simply allow legislatures to remove access to that, we are opening the door to a return to “government by decree”, where there is little or no effective check on the power of the legislatures.
Just as the Magna Carta itself began the process of curtailing the powers of the monarchy so that they could no longer rule by decree without some check on their power, it is now clear that governments like that currently led by Danielle Smith require some checks on their exercise of power. That check has to come in the form of the courts.
** Footnote: This is the beginning of my thinking process on this matter. In the future I will flesh out the line of argument needed in more detail. I need to look at a number of aspects of the Constitution, as well as some relevant case law.
