One of the loudest criticisms of the Federal Attorney General’s submission in English Montreal School Board, et al v. Quebec Attorney General is that it relies on “novel” interpretations of The Charter of Rights and Freedoms (The Charter) and the Canadian Constitution (The Constitution).  

I am going to explain why I think that line of reasoning is incorrect, and why the more “linear” interpretations that the critics are advocating for are in fact the “novel” interpretations which should be examined with suspicion.  

The Federal Attorney General’s Analysis

I wrote a fairly detailed analysis of the Federal Attorney General’s submission here – if you aren’t already familiar with it, please go read that post, it will fill in a lot of details that I am not going to rehash here. 

The Federal AG’s argument makes several claims that are interesting:

1). That the Notwithstanding Clause (S33) was not intended to be used to extinguish rights, but is in fact an emergency power primarily for temporary situations. 

2). That repeated renewals of S33 are in fact creating unauthorized amendments to The Charter.

3). That the use of S33 to limit rights must not result in enduring harm.

There are several principles at play that are in fact quite interesting here.  On its face, S33 does appear to be a relatively unbounded instrument:  

Exception where express declaration

• 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.

• Operation of exception

  (2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.

• Five year limitation

  (3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.

• Re-enactment

  (4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1).

• Five year limitation

  (5) Subsection (3) applies in respect of a re-enactment made under subsection (4).

Again, this is the “on its face” analysis – if you simply look at S33 without looking at the full context of The Charter and The Constitution, this does appear to be a very blunt instrument that merely has to be invoked in order to make a piece of legislation stand in spite of how it may violate the terms of The Charter. 

However, as the Supreme Court of Canada (SCC) has ruled and the Department of Justice describes, the interpretation and application of The Charter must be purposive (of purpose), contextual, as well as textual.  

So, it is valuable here to consider the purpose, context, as well as the text of S33.  The provincial argument is that S33 doesn’t stipulate any limitations on its use, and that’s all there is to it.  This is an example of purely textual analysis that does not interrogate the matters of purpose and context.  

Are There Constitutional Boundaries on S33?

The Federal AG argues that there are some key contextual issues that such a reading ignores.  First, it ignores the fact that The Charter exists as part of The Constitution, and as such is subject to the Amending Formula presented in The Constitution.  Therefore, the Federal AG reasons, there is an argument to be made that repeated use of S33 through renewals is creating a de facto amendment to The Charter while bypassing the amending formula in The Constitution.  

This is not, in my view, a particularly novel interpretation of The Constitution.  The Charter is a part of The Constitution, and amending it should be subject to the usual procedures.  It should not be a matter of an act of the legislature invoking S33 that results in a long term amendment to The Charter that restricts the rights of Canadians arbitrarily in a particular jurisdiction. 

The Federal AG also addresses issues with the purpose of the Notwithstanding Clause through its analysis.  They suggest to the court that between the “sunset clause” (S33(3)), and the presence of an amending formula in The Constitution that in fact S33 as a whole is clearly intended for temporary situations, not for long term perpetual changes to rights in Canada.  Here, we have an example of purpose and context intersecting.  The argument examines 2 major pieces of relevant legislation, and derives from them what appears to be a reasonable and natural limitation on S33.

Is this a “novel interpretation”?  No – it is, one which places S33 in context and queries the extent and purpose of S33.  

Narrowing S33’s Purpose

The concept of purposive analysis as described in the Department of Justice’s Charterpedia article reads as follows: 

The central precept of the purposive approach is that the meaning of the right must be understood in light of the interests it was meant to protect. This requires consideration of the relevant linguistic, philosophic and historical contexts. Regard must be had for the language used, other Charter rights with which the right is associated, constitutional principles, and the need for Charter rights to be capable of development over time …

If rights in The Charter are intended to be interpreted broadly and expansively, then in a similar vein, there is also an argument that S33 – which is clearly designed to allow for restriction of rights beyond what S1 of The Charter allows for – should be understood as a very limited power for the most urgent of situations. Otherwise, we end up with a situation where rights can be infringed upon by legislation more easily than they are guaranteed by The Charter. 

Provinces like Alberta argue that S33 can be applied when the legislature deems it useful to do so, and that’s all there is to it.  This flies in the face of the principles of interpreting The Charter, which require a much broader view be taken in the understanding of The Charter and the rights guaranteed within. 

Enduring Harm

Of the Federal AG’s arguments, this is perhaps the one part that does raise questions about the “novel interpretation”.  The Federal AG argues that rights abridged by legislation using S33 cannot result in long term harm to those affected when the application of S33 expires.  They use the following language to emphasize this:  

Accordingly, any right or freedom referred to in an express declaration made under s. 33 must retain its integrity so that it can be fully exercised when the declaration expires—just as a lightbulb should shine as brightly as it did before being temporarily turned off.

This is an interesting extrapolation of reading which appears to draw from the Federal AG’s understanding of purposive interpretation of The Charter.   In other words, the Federal AG is once again arguing that because S33 invocations are necessarily temporary, that the consequences of that temporary abridgement of rights cannot result in long term harm to those affected.  Using the contextual analysis that the Federal Attorney General has already laid out, it makes sense that a temporary abridgement of rights must therefore not result in long term harms to the rights involved.  

While I personally do agree with this principle, and I think I understand it as an extrapolation of both contextual and purposeful analysis, I also can understand where some might struggle to understand how a legislator could be expected to “reasonably foresee” long term harms from the invocation of S33.  

The Weight of Guarantee

Section 1 of The Charter (often called the “Reasonability Clause”) reads as follows:  

1 The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

I have emphasized the word guarantee here, a word which appears a dozen more times in The Charter, always referring to the rights both explicitly covered in The Charter as well as those not explicitly covered (see S26 of The Charter).  The use of the word “guarantee” implies that Charter Rights exist at the very top of the Canadian legal hierarchy for a compelling reason, and that they should not be limited or revoked by legislation without the strongest of reasons.  

Here is where I believe the real constitutional crisis exists.  If S33 can be used to nullify rights at the whim of provincial legislatures (or the Federal Parliament, come to that), then the language of “guarantee” in The Charter becomes very weak.  This would diminish the importance of The Charter in Canada’s legal framework, and reduce the role of the courts in being a source of relief for citizens who find themselves subject to governments eager to restrict their rights.  Further, it creates a significant “hierarchy of law” problem where provincial legislation suddenly has more weight than The Constitution as a whole and The Charter in particular.  

In common language, a guarantee is a fairly strong word.  If you buy a car and are told “I guarantee this car will run perfectly for the first year you own it”, you have some right to be angry with the seller when a wheel falls off in the first month.  You would be well within your rights to return to the seller and demand that they repair the damage done by the fault.  

The court here has a significant issue before them.  If they rule that S33 is essentially an unbounded tool for legislators to use as they wish, the word “guarantee” in The Charter might as well be replaced by “suggested”, as The Charter no longer binds the legislators of all jurisdictions in Canada, but instead is reduced to the level of being a mere suggestion.  Doing so would place the fabric of the highest law in Canada in jeopardy. 

Closing Thoughts

I hope that I have at least somewhat persuaded you that the arguments of the Federal Attorney General are not really “flights of fancy” in interpreting The Charter, but in fact derive fairly reasonably from the long-established practices that guide the interpretation of The Charter since it came into force in 1983.  

To date, the SCC has not been asked to opine on the scope and rules that should apply to S33 beyond Ford v. Quebec, which came down in 1984, and really didn’t reach deeply into S33 and its context.  That is what makes the Montreal English School Board, et al v. Quebec Attorney General case so important.  Arguments that the Federal AG is engaging in “creative interpretation” of The Charter are really dependent upon a very literal reading of The Charter and wilfully ignoring its full context within The Constitution.

The underlying principle that The Charter is a living document and its interpretation needs to reflect the time and circumstances of the moment is important here.  Up until Quebec’s introduction of Bill 21, there have been relatively few applications of S33 which have warranted the attention of the SCC.  However, in the last several years, other provinces (especially Alberta) have decided to implement other legislation which uses S33 to insulate the legislation from Charter Challenge.  The overall picture has changed since 1983, and now S33 is being used in a manner which potentially degrades the guarantees of The Charter, and that is why it is valid – even necessary – to consider S33 in full context and determine the extent to which S33 can be used by legislators to override rights. 

Whatever the SCC rules on this matter, there are going to be repercussions.  If the SCC rules in the direction the Federal AG is arguing, provinces like Alberta are going to have a major temper tantrum; if the SCC rules as the provinces seem to desire (which is a very simplistic, literal interpretation), then we find ourselves in a situation where Charter Rights are reduced to a “legislative suggestion”, and provinces become the final arbiters of what rights residents may enjoy (a chilling thought in a province like Alberta where the UCP government seems to have decided to go down a very limiting, authoritarian road on such matters).