- Reid LeClair
- 47 minutes ago
- 8 min read
Introduction
To date, the prevailing authority on the interpretation of section 33 is the Supreme Court of Canada (“SCC”)’s 1988 judgment in Ford v Quebec (Attorney General),[1] which determined that valid invocation of section 33 by a legislature establishes requirements of form only, with no further substantive limitations on how the clause can be used to override fundamental rights.[2] In anticipation of the SCC’s upcoming reconsideration of section 33 in the English Montreal School Board case,[3] this article re-examines the Court’s reasoning in Ford. Specifically, it is argued that there are two additional constraints on section 33 that should be recognized by the Court. First, if the Court opts for a textualist approach to the interpretation of the clause, its invocation should be constrained to a singular right. Secondly, if the Court instead adopts a purposive approach, demonstrable conduct made in good-faith by the enacting legislature must precede its invocation.
The Reasoning Leading to Ford
The ruling in Ford is clear: the use of section 33 is limited by a requirement of form only (i.e. the requirement of an express declaration in legislation); the use of section 33 precludes substantive judicial review; and there is no need for the invoking statute to specify the precise rights/freedoms that may be impacted, as this would require a prima facie justification which exceeds the formal requirements.[4] In articulating this conclusion, the SCC relied heavily on the findings in the lower court decisions in Alliance des professeurs de Montréal c Procureur général du Québec,[5] which thoroughly debated the requirements and language of section 33.
In the Superior Court decision in Alliance, Chief Justice Deschênes addressed the argument that the usage of the wording “a provision” (emphasis added) in section 33 should be interpreted in the singular. He concluded that the word was to be interpreted as an indefinite article rather than its arithmetic meaning, reasoning that if there was to be a mathematical barrier, more precise wording such as “one single provision” should have been used.[6] Then, in the appellate-level decision (which was overturned in Ford), the Quebec Court of Appeal disagreed with the Superior Court ruling that Quebec’s Act respecting the Constitution Act, 1982 validly invoked section 33.[7] Of concern to the Court of Appeal in this case was whether the override declaration sufficiently indicated which provision(s) of the Charter would be affected. The Court found that the method by which the Act invoked section 33 was invalid, as it did not, through stating the Charter section numbers only, satisfy the criteria of sufficiently informing the public about which specific rights and freedoms would be affected.[8] Notably, however, the Court of Appeal endorsed the Superior Court’s finding that the use of the word “a” in the section 33’s wording does not prohibit the legislature from overriding multiple rights, as it is an indefinite article rather than a numerical adjective.[9]
The problem with this approach is that while “a” is no doubt an indefinite particular, it is a singular indefinite particular. In this regard, even if Chief Justice Deschênes is correct that section 33 could have used clearer language to indicate singularity (e.g. “one single provision”), it is equally persuasive that the wording “any provision” or “all provisions” could have been used to clearly indicate that multiple provisions could be overridden simultaneously. This is an admittedly pedantic argument, but the point is that if the courts emphasize the text of the notwithstanding clause to justify that there is no substantive requirement for invocation (despite the consensus of the drafters and scholars that it be used responsibly by government), then they have to account for the fact that the text is demonstrably drafted in a way that permits the violation of a right, not any or all enumerated rights. There are good reasons for not adopting a textualist approach to Charter interpretation (some of which are discussed below); but, if we do, it’s difficult to deny that the formal requirements on its use are more extensive than those recognized in Ford, and include an implicit bar on invocations that apply to more than one right.
Rebalancing the Interests in Interpreting Section 33
Setting aside the textual focus of the previous section, some scholars have engaged with Ford by adopting a more purposive approach. Hoi Kong, for example, presents a compelling critique in favor of the Ford decision being overturned,[10] arguing that the standard mode of purposive analysis in interpreting the Charter (established prior to Ford in Hunter v Southam[11]) was not adopted in the Court’s reasoning in Ford, thereby making Ford anomalous and inconsistent with the surrounding jurisprudence.[12] Kong also observes that recent jurisprudence rejects constitutional interpretation which is strictly textualist, whereas he argues that Ford relied exclusively on cursory textualist analysis.[13] Kong suggests that an additional constraint or precondition limits section 33, specifically arguing that jurisprudence against superfluous interpretation applies to section 33, and it may therefore only be invoked in situations where the affected law is invalid on Charter grounds.[14] By extension, a law can only be assessed “to operate” after its constitutional validity has been assessed, thereby requiring the government to justify the invocation through constitutional reasoning first.[15] Importantly, Kong notes that this judicial requirement would give effect to the presupposition that the government has actually interpreted the relevant provisions of the Charter and is not disregarding the requirements of the Constitution completely.[16] Accordingly, a court could rule that section 33 cannot be pre-emptively used, but can only be invoked after a ruling that legislation unjustifiably infringed an enumerated Charter right.[17] This seems consistent with the governmental accountability many scholars advocate for, and suggests a potential precondition beyond the formal requirements of section 33. Kong concludes by noting that objections on the basis of the proposed obligations not appearing in the text of section 33 can be defeated by the reality that courts have found — and continue to find — constitutional obligations that arise by necessary implication.[18]
An interesting observation surrounding Kong’s argument, however, is present in Léonid Sirota’s article, “Purposivism, Textualism, and Originalism in Recent Cases on Charter Interpretation.”[19] Specifically, Sirota analyzes several recent SCC Charter decisions and concludes “that the method majorities in each of these cases endorsed is not purposive as this term would traditionally have been understood in Canadian law ... Despite its labelling as purposive, the approach of the majorities in Stillman, Poulin, and Québec Inc has more in common with textualism, and even, especially in Stillman, with originalism.”[20] While Sirota’s article is concerned with the juxtaposition between the descriptors used by the SCC compared to its apparent methodologies, he concludes that “the Supreme Court is coming to accept that courts engaged in Charter interpretation must pay closer attention to constitutional text and to its history than they had typically done in recent decades.”[21] To this end, while Kong emphasizes the SCC’s adoption of purposivism in Southam to bolster his argument that Ford interpreted section 33 utilizing the wrong principles, Sirota’s observations suggest that the Court is actually no longer beholden to purposivism, but is paying lip service to it while practicing what is effectively a textualist approach to constitutional interpretation.
A review of the history leading to the Ford ruling underscores this precarious balance. It is this very textual focus that exposes the SCC’s decision in Ford to critique when it states that “a provision” must be read broadly to give effect to the purpose of the clause. Sirota explains:
Purposivism, in its various forms, invokes the purposes of constitutional rights to choose among conflicting readings of constitutional provisions, or supplement them where necessary, or even to give purposes direct effect regardless of textual details. Textualism, by contrast, is the view that the meaning of the constitutional text (understood in context) is what is binding on the courts, which may not disregard the text to give effect to abstract purposes.[22]
In Ford, the SCC determined that there is no substantive limitation on the invocation of section 33 based on its text, despite a singular indefinite particular that could feasibly restrict its application. then, the Court stated that its decision respects the purpose of section 33 based on its wording, despite the clear understanding of the drafters that the clause was to be used in good-faith for matters of difference of interpretation of rights, not to flatly deprive people of rights. It may be precisely this improper balancing of textualism and purposivism that leads to the controversy surrounding Ford and its status as the precedent on the notwithstanding clause.
Conclusion
Ultimately, it seems many concerns relating to section 33 are motivated not by whether governments or the judiciary should have the ultimate say on rights, but rather, that section 33 could be used absent good-faith to defeat the very purpose of entrenching rights and freedoms into the Charter. The precedent adopted in Ford grants broad deference to governments, and this ruling was likely founded in the historical context of section 33, which was defined in part by a belief that the section would not be used maliciously or arbitrarily due to the perceived political cost. The problem, however, is that this presumption failed to consider that a populist majority could not only condone or remain complacent to the injustices of their government, but also that the political cost disappears when a majority government can be consistently re-elected on ideological motivations, despite their actions. That is where we seem to be now, with multiple provinces using the notwithstanding clause to restrict minority rights with impunity.
The very possibility of a lack of governmental accountability in the usage of section 33 requires that the Ford precedent be re-examined. While compelling arguments exist for maintaining section 33 in the Charter, it should not be controversial that a government’s usage of section 33 should be restrained by the basic principles of good-faith and accountability, despite the seemingly textualist reasoning in Ford. To reduce the likelihood of abuse of section 33 by ideologically motivated, bare majority governments, section 33 could be constrained by a more purposive interpretation that could find an invocation presumptively invalid where a basic level of good-faith cannot be demonstrated. Alternatively, the very text of section 33 could allow for the constraint of section 33’s usage to a singular right. Each of these approaches can be justified, and either approach ensures that governments are not emboldened to violate the guaranteed rights of their electorate without effective accountability — the very gap left in the Ford precedent.
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Reid LeClair is a 3L law student at the University of Alberta
[1] Ford v Quebec (Attorney General), [1988] 2 SCR 712 [Ford].
[2] Gregoire Webber, “The Notwithstanding Clause and the Precedent in Ford: le dit et le non-dit” (2023) 32:3 Const Forum Const 13 at 14.
[3] See Organisation mondiale sikhe du Canada c Procureur géneral du Québec, 2024 QCCA 254.
[4] Hoi Kong, “Overturning Ford” (2023) 32:3 Const Forum Const 21 at 22.
[5] Alliance des professeurs de Montréal c Québec (Procureur général), 1985 CanLII 2970 (QCCA). [Alliance CA], rev’g Alliance des professeurs de Montréal c Québec (Procureur général), 1983 CanLII 2647 (QCCS) [Alliance SC].
[6] Alliance SC, supra note 5 at paras 53-56.
[7] Alliance CA, supra note 5 at para 58.
[8] Ibid at para 58.
[9] Ibid at para 29.
[10] Kong, supra note 4.
[11] Hunter et al v Southam Inc, 1984 CanLII 33 (SCC).
[12] Kong, supra note 4 at 22-23.
[13] Kong references how the Carter v Canada (Attorney General), 2015 SCC 5 decision warranted overturning Rodriguez v British Columbia (Attorney General), 1993 CanLII 75 (SCC) as an example of the use of vertical precedent to overturn a previous constitutional interpretation. Kong expands on vertical precedent to argue that Quebec (Attorney General) v 9147-0732 Québec Inc, 2020 SCC 32 rejected a strictly text-based approach, in favor of text being the starting point for a purposive approach, concluding that the doctrine of vertical precedent would necessitate overturning the interpretation in Ford. See Kong, supra note 4 at 24.
[14] Ibid at 25.
[15] Ibid at 26.
[16] Ibid.
[17] Ibid at 29.
[18] Kong specifically identifies the Reference re Secession of Quebec, 1998 CanLII 793 (SCC), where a “duty to negotiate” was found despite not being in the constitutional text, and Trial Lawyers Association of British Columbia v British Columbia (Attorney General), 2014 SCC 59, where it was found that denying some people access to justice infringed the core jurisdiction of the section 96 courts, despite section 96 not mentioning access to justice: see Kong, supra note 4 at 30.
[19] Leonid Sirota, “Purposivism, Textualism, and Originalism in Recent Cases on Charter Interpretation” (2021) 47:1 Queen’s LJ 78.
[20] Ibid at 107.
[21] Ibid.
[22] Ibid at 100.