Carter v. Canada and why the Constitution – and Parliament – would benefit from the occasional use of section 33, the Charter’s override provision

In Carter v. Canada, the Supreme Court of Canada (SCC) declared the provisions of the Criminal Code that restricted physician-assisted suicide unconstitutional as a violation of life, liberty and security of the person protected under section 7 of the Charter of Rights. As a remedy for this unconstitutional violation, the SCC suspended the force of its decision for one year, which is set to expire on February 6, 2016.

Since the SCC delivered Carter, a number of important political events have transpired.

  • 2015 witnessed the longest election campaign in Canadian history, which resulted in a much-reduced parliamentary calendar to produce a legislative response to Carter v. Canada and comply with the Court’s remedy under section 24(1). This calendar was further complicated by the delayed introduction of the federal budget.
  • The Harper Conservatives were defeated and replaced by the government of Justin Trudeau. Since the Carter decision – and despite the SCC granting a one-year delay –Parliament has sat for a total of 73 days as of February 6, 2015.

Anticipating that it cannot introduce changes to the Criminal Code before the one-year suspension expires, legal counsel for the Trudeau government appeared before the SCC on January 11, 2016 to request a 6-month extension to the SCC’s suspended declaration of unconstitutionality to draft a response to Carter.

This request by the Trudeau government is wrong for a number of reasons:

  • It creates the impression of extreme deference by the new government to all aspects of judicial politics involving the Charter of Right, from the determination of constitutionality by the SCC, to determining what is a reasonable parliamentary timetable to produce a thoughtful legislative response;
  • It overlooks a mechanism within the Charter of Rights that would allow Parliament, and not the SCC, to decide how much time is needed to draft a legislative response to a constitutional decision of Carter’s complexity, and contested nature – section 33, the notwithstanding clause.

Instead of speaking to the Court about an extension, the Trudeau government should have first raised the possibility of using the notwithstanding clause before Parliament.  This extension is simply to ensure that Parliament has enough time to fashion appropriate amendments to the Criminal Code, and Parliament is best positioned to make this determination. The fact that the Liberal government spoke to the Court first, and has yet to speak to Parliament about using the notwithstanding clause, suggests misunderstandings persist about section 33 and what its use means.

What does it mean to use the Legislative Override?

This is perhaps the most misunderstood provision of the Charter of Rights and Freedoms. As Janet Hiebert argued in Contested Constitutionalism, section 33 is a legitimate provision that allowed a political compromise to emerge during the November 1981 First Ministers Conference. This political compromise was instrumental as it permitteded the Trudeau government to satisfy the SCC’s requirement in the Patriation Reference that ‘substantial provincial consent’ was necessary before the Parliament of Canada could request changes to the British North America Act by the Westminster Parliament.

Since the use of the notwithstanding clause by Quebec in response to the invalidation of the sign-law provisions of Bill 101 in Ford v. Quebec, section 33 has been equated with a denial of rights and freedoms. This has become the dominate narrative of the notwithstanding clause and part of the DNA of the Liberal Party of Canada.

This view of the notwithstanding clause is so ingrained in the Liberal Party, that it appeared in the preamble to Bill C-38 An Act respecting certain aspects of legal capacity for marriage for civil purposes, which allowed for same-sex marriage following Reference re Same-Sex Marriage in 2004. In Bill C-38’s preamble, the government of former Prime Minister Paul Martin reviewed the legal and legislative developments surrounding equality rights and the issue of same-sex marriage and stated the following:

WHEREAS, in light of those considerations, the Parliament of Canada’s commitment to uphold the right to equality without discrimination precludes the use of section 33 of the Canadian Charter of Rights and Freedoms to deny the right of couples of the same sex to equal access to marriage for civil purposes;

Using the notwithstanding clause to override a decision by the SCC can result in the denial of a right, as the preamble to Bill C-38 indicates. But it can also suggest something else, and the Trudeau government should ponder this as it awaits the SCC to decide whether to grant an extension on the remedy outlined in Carter.

Using section 33 can preserve the substance of the Court’s decision involving a right, while at the same time allowing a government to challenge the remedy used by the Court under section 24(1) of the Charter.

In suggesting this, I recognize that section 33 of the Charter is restricted to overriding judicial decisions involving section 2 (fundamental freedoms), sections 7-14 (legal rights) and section 15 (equality rights) for a renewable five-year period. It does not apply to section 24(1) of the Charter, which is the provision that allows a competent court to apply a remedy to a statute found unconstitutional that is ‘appropriate and just in the circumstances.’

However, the use of section 33 provides Parliament with the discretion how to frame the legislative resolution authorizing its use. By appearing before the SCC on January 11, 2016, legal counsel for the Trudeau government sought an extension to allow Parliament to fashion an appropriate legislative response. They did not challenge the substance of the Court’s decision in relation to section 7, nor did legal counsel challenge the finding that sections 14 and 241(b) of the Criminal Code were unconstitutional.

Thus, Parliament has the ability to draft a legislative resolution authorizing the use of section 33.  This resolution can agree with the section 7 argument of the SCC while disagreeing with the remedy issued under section 24(1).  Such an approach would preserve the constitutional position of the SCC as the highest court ruling on rights and freedoms, while preserving the prerogative of Parliament as a law making body to determine how long is necessary to comply with the Court on Carter by drafting a suitable legislative response.  This approach to section 33 would require a 4-part legislative resolution:

  • First, indicate that Parliament supports the Court’s position that the challenged Criminal Code provisions are a violation of section 7 of the Charter and must be remedied to comply with the Court’s decision;
  • Second, justify overriding the Court’s decision involving section 7 because Parliament disagrees with the Court that a thoughtful legislative response to an issue such as physician assisted suicide can be properly legislated within the remedy time frame provided in Carter under section 24(1);
  • Third, establish the time frame for an extension that Parliament believes is needed to amend the Criminal Code to comply with Carter;
  • Fourth, include a sunset provision in this legislative resolution that coincides with the time frame for the extension authorized by Parliament. Although section 33 allows Parliament or a provincial legislature to override a judicial decision for a renewable five-year period, there is nothing preventing Parliament from passing a resolution authorizing the use of section 33 for a much shorter period.

What would this use of section 33 say?

Most importantly, it would challenge the narrative that using the notwithstanding clause is simply a legislative response that denies rights or freedoms. Under the suggested resolution authorizing section 33’s use in response to Carter, Parliament agrees with the Court’s jurisprudence and simply takes issue with the ability to implement legislative changes within a one-year period to an issue of Carter’s complexity.

This use of section 33 coincides with the institutional responsibilities accorded to the SCC and Parliament under the Charter of Rights and Freedoms: it preserves the legitimacy of the Court as the highest adjudicator on constitutional issues and it preserves Parliament’s institutional autonomy and capacity as a law-making body charged with implementing legislative responses to judicial declarations of unconstitutionality.

How should Parliament approach using section 33?

Having indicated why Parliament should use section 33 in the context of the Carter remedy, and suggesting that appearing before the SCC to grant an extension is highly problematic and unnecessary, I will conclude with how Parliament should adopt a legislative resolution in regard to the Carter remedy.

The suggestions for the use of section 33 are drawn from the work of Christopher P. Manfredi and Judicial Power and Charter. Manfredi correctly states that the use of section 33 should be a decision of Parliament, and not simply the party in office, and calls for a supra-majority vote to authorize its use. In Judicial Power and Charter, Manfredi suggests ‘A declaration under this subsection becomes effective upon the agreement of three-fifths of the House of Commons and Senate or three-fifths of the provincial legislature, as the case may be’ (page 193).

I would amend this suggested use of section 33 in the following way – authorize its use by the agreement of three-fifths of the members provided that at least two recognized parliamentary parties in the House of Commons support its use.

This is for the following reason – the use of the notwithstanding clause is a serious matter and it must transcend party-political differences. Although majority governments in Parliament rarely exceed 60% of the seats in the House of Commons –in the last 60 years only Diefenbaker (1958), Chretien (1993) and Mulroney (1984) met this mark – the notwithstanding clause must be passed by more than the party in office, but must demonstrate that the collective will of Parliament authorizes its use.

Conclusion

The Supreme Court of Canada has reserved its decision whether to grant the requested extension in Carter. As I have argued, this request is both unnecessary and misplaced.

If the Court grants the extension, the Liberal Party of Canada is indicating how it will approach its relationship with the Supreme Court of Canada, as it relates to the Charter of Rights – one of extreme deference in all matters related to the judicialization of politics.

However, if the Court refuses to grant the extension, the Trudeau government should consider using the notwithstanding clause. This would not be a denial of section 7 but a disagreement with the Court over which actor – Parliament or the SCC – is best positioned to determine the necessary time frame to draft a legislative response to comply with Carter.

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