I support Premier Ford because, notwithstanding Justice Belobaba’s erroneous decision, Bill 5 is a constitutional piece of legislation.
Introduction:
I remember my first day of law school like it was yesterday. Walking through the doors of Fauteux Hall with my law books in tow was an exciting and humbling experience. Very few people have the opportunity to learn about, study, and debate the fundamental pillars of our democratic institutions. I still can’t believe that, out of thousands of applicants, someone like me had actually been given an opportunity to learn from, arguably, the best of the best in our country.
Going to law school is truly a privilege, not a right. I am forever grateful to the admissions faculty at the University of Ottawa Faculty of Law (“U of O”) for giving me the opportunity of a lifetime.
Constitutional Law is a mandatory course at U of O. You can’t graduate without taking it. It was one of those courses that everyone groaned about, until they actually took the course. And then we all loved it. I might be biased, but I still maintain to this day that U of O has some of the best constitutional law professors in Canada. The entire semester consisted of going through each Section of the Charter: we would review each Section, the relevant case law, parliamentary debates, comments from judges, and related constitutional norms.
When we got to Section 33, the “Notwithstanding” Clause, there was actually very little substance to discuss. Of course, we reviewed the most well-known cases and their surrounding contexts. We mostly discussed hypotheticals however, simply because it has been very rarely used. I honestly never thought that, one day, I would be in a position where I’d have to decide whether or not to invoke the Notwithstanding Clause for the first time in Ontario’s legislative history.
The Notwithstanding Clause:
I’ve spent the past 24 hours speaking with colleagues, friends, and even former law professors. In these conversations, I’ve made theoretical and objective arguments for and against its use – as any litigator would do when working on solidifying their position and their reasoning.
Our democratic system is designed in a way that balances the powers of the government (comprised of the Executive and the Legislature) vis-a-vis the courts. In my role as a legislator, my decision to support the Executive’s (aka the Premier and his Cabinet’s) use of the Notwithstanding Clause is based on my own objective legal reasoning, which I’ve outlined and explained below. I’ve also provided references for further reading, should anyone wish to read and further review.
The Honourable Bastarache J., a former Supreme Court of Canada judge, said it best: Sections 1 and 33 of the Charter are intended to strike an appropriate balance between law-maker and law-reviewer. Keep in mind – the Charter did not come into force and effect until 1982. Before that, when the Charter was being drafted, many expressed concern about shifting Canada’s political system, which had until that point been one of parliamentary supremacy, to a constitutional supremacy.[1]
In more recent decisions, the Supreme Court of Canada (“SCC”) has stated unequivocally that judicial review on Charter grounds “fosters both dynamic interaction and accountability amongst the various branches.” In other words, “[t]he work of the legislature is reviewed by the courts and the work of the court in its decisions can be reacted to by the legislature in the passing of new legislation (or even overarching laws under s.33 of the Charter) [emphasis added].”[2]
Back in the late 70s and early 80s, when the Charter was being debated everyone agreed that Section 33 was intended to give the legislature the so-called “last word”. Section 33 was intended as a tool to correct “judicial errors”.[3] It’s a political tool, one that can be used by governments as a check against judicial decisions that it believes are incorrect.
In other words, if the court rules that a particular legislation infringes Section 1 of the Charter, Section 33 of the Charter allows the government to exempt that legislation from constitutional scrutiny,[4] especially if the government believes that the court is incorrect in its ruling.
Why I am supporting Premier Ford’s decision to invoke the Notwithstanding Clause:
At the time of writing this paragraph, it’s currently 11:49 pm on Tuesday September 11. I have read, and re-read, Justice Belobaba’s decision. Several times. This will be one of those judgements that makes it into all the law books and law students across Canada will debate and discuss it in their classes.
The fundamental question before Justice Belobaba, in his own words, “is not whether Bill 5 is unfair. The question is whether the enactment of Bill 5 is unconstitutional.”[5] Further, he states that as long as a statute is within one’s legal authority and is not contrary to the Charter, courts have no role to supervise legislative power.[6]
Justice Belobaba decided that the enactment of Bill 5 is unconstitutional.
As a lawyer and a legislator, I respectfully disagree.
Justice Belobaba stated himself that the “Province was entitled to enact Bill 5”.[7] He also stated that Bill 5 falls within the Province’s legal authority.[8]
So, in his own words, the Province already has full, unequivocal authority to legislate Bill 5.
Respectfully, I take issue with Justice Belobaba’s definition of “freedom of expression” – Section 2(b) of the Charter.
Laws only violate the freedom of expression in one of 2 scenarios:
- By limiting content – i.e. the meaning is specifically forbidden by law; or
- By limiting form – i.e. the method of expression.
A law will be found to restrict freedom of expression if it has the effect of frustrating “the pursuit of truth, participation in the community, or individual self-fulfillment and human flourishing”.
Bill 5 did neither of those things, and Justice Belobaba’s reasoning in that regard was a huge stretch. When he stated that “Political expression” is guaranteed by s. 2(b), he was referring to a case where the complainant was limited in his method of expression during the Quebec Referendum by pre-existing government regulation.[9]
Bill 5 did no such thing.
In fact, Bill 5 did not in any way, shape, or form, limit anyone’s freedom of expression. There is no proof that Bill 5 limited any candidate’s communication. Again, as Justice Belobaba stated at the beginning of his decision, the question here isn’t about fairness, it’s about constitutionality.
With respect to his argument about the right to vote, that right is enshrined in Section 3 of the Charter, not Section 2(b). Having spoken with various people, including my former constitutional law professors, I find it very disconcerting that Section 3 of the Charter was used to define Section 2(b), and I strongly believe this was an improper use of the Charter and its stated definitions.
Conclusion:
My decision to support the Premier’s use of the Notwithstanding Clause does not come lightly. The arguments and analyses I’ve made above refer to the most poignant issues at play in my decision. There are several nuances, sub-issues and hypotheticals that I could discuss. I’ve played them all out in my discussions and debated them over and over with various people.
This is a contextual analysis, meaning that my decision is based solely on the factors affecting this particular situation.
At the end of the day:
- Our democratic institutions are informed by the concept of Parliamentary Supremacy.
- Section 33 of the Charter allows the Province to enact legislation if it is of the view that there is a judicial error.
- The Province has full legal authority under the Charter to invoke Section 33, while concurrently bringing an order to stay the decision and initiating an appeal.
- These actions are in full compliance with the Charter.
- Justice Belobaba (in my respectful opinion) improperly defined Section 2(b) of the Charter.
- This improper definition enabled him to improperly declare Bill 5 as unconstitutional.
- But for this improper definition, Bill 5 is a valid piece of legislation that does not infringe Charter
I believe that Bill 5 does not infringe Section 2(b) of the Charter. I will be voting in favour of invoking the Notwithstanding Clause because, notwithstanding Justice Belobaba’s judicial error, Bill 5 is a valid, constitutional piece of legislation.
References:
[1] Section 33 and the relationship between Legislatures and Courts
[2] Bell ExpressVu Limited Partnership v. Rex, [2002] 2 SCR 559
[3] Section 33 and the relationship between Legislatures and Courts
[4] Law Society of British Columbia v. Trinity Western University, 2018 SCC 32
[5] City of Toronto et al v. Ontario (Attorney General), 2018 ONSC 5151, at para 7
