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Law Profs, Open Letters, and the Notwithstanding Clause

by Sarah Burningham, Assistant Professor
College of Law, University of Saskatchewan
May 27, 2024

 


After a period of dormancy, usage of the notwithstanding clause in anglophone provinces has

surged. In the last few years, Ontario has moved to invoke the clause three times, Saskatchewan twice, and New Brunswick has contemplated its use.


In this piece, I highlight the legal academy’s public pushback to the (actual or anticipated) use of the notwithstanding clause. While this opposition can and has taken different forms (e.g. social media posts, media interviews), I focus on open letters to the government.

 

Legal academics, mostly from Ontario, signed an open letter in 2018 after Doug Ford’s government moved to reduce the size of Toronto’s city council, using the notwithstanding clause to do so. In 2023, Saskatchewan law profs released an open letter in response to a provincial bill which would prohibit teachers from using trans children’s gender-aligned pronouns (full disclosure: I was a signatory to that letter). Finally, in February 2024, faculty and staff from the Universities of Alberta and Calgary signed an open letter after Alberta announced plans to restrict access to gender-affirming care for young people (Alberta has not yet indicated whether it will use the notwithstanding clause to enact this policy). All of these letters were critical of their government’s actual, contemplated, or likely use of section 33.

 

In this piece, I critically examine these letters. The letters are discussed and compared, and themes and normative presuppositions are investigated. I then comment more generally on the role of open letters and argue such letters can facilitate the political check on the notwithstanding clause.

 

The Ontario letter begins with background on the Constitution. It observes that the Charter’s drafters intended for the notwithstanding clause to be used only exceptionally and notes that the clause has indeed been infrequently employed (outside of Quebec). The letter expressly states that it takes no position on the desirability or constitutionality of the underlying policy but rather objects to the use of the notwithstanding clause. It suggests that Ford’s use of section 33 ignores the foundational role of the judiciary and “strikes at the heart of our constitutional democracy.” The letter ends with an observation that while the government can lawfully use the notwithstanding clause, it must “never be the first resort — it should be the last. The notwithstanding clause must be the exception — not the rule.”

 

The Saskatchewan letter, in response to the government’s new pronoun policy, is the shortest of the three letters. It observes that the notwithstanding clause is “outside … the normal legal process” and is “exceptional.” Given that the policy has the potential to harm vulnerable groups, the letter argues that a court should review it to see whether it has struck an appropriate balance between individual rights and state interests. The letter expressly references the “pre-emptive” use of the clause as problematic (the Saskatchewan government had employed the clause after an interim injunction was granted, but before a hearing on the merits of the constitutional challenge to the policy).

 

The Alberta letter is the longest and is predominately a criticism of the government’s recently announced plans to restrict access to gender-affirming health care for trans youth. The letter argues that Alberta’s policy is harmful and rights-violating. The letter ends by stating that the government should not use the notwithstanding clause to enact its suite of policies. The writers observe that the drafters intended for section 33 to be checked at the ballot box, but this political constraint does not work effectively for “marginalized groups” who lack “political clout.” Using section 33 in this context would “would be highly inappropriate,” it claims, adding: “To override their rights knowing that they are too few to hold the government accountable at the ballot box would be fundamentally anti-democratic.” And, finally, the letter closes with an observation that section 33 is unnecessary, because if the policy were truly important, the government could demonstrate it was a justifiable limitation under section 1.

 

All three letters are critical of the use of the notwithstanding clause, for pretty much the same reason, though the reason is stated a bit differently in each. Essentially, all agree that section 33 is an exceptional tool and should not be employed routinely or lightly. Ontario’s letter expressly appeals to the founders’ intent to make the case for exceptionality, whereas Saskatchewan and Alberta implicitly appeal to the idea that constitutional rights matter, even in the face of a tool that permits government override, and that the usual process of judicial review ought to be favoured in order to best respect and protect those rights.

 

However, while all letters suggest the clause should be invoked exceptionally, they strikingly diverge on the question of whether the notwithstanding clause is legitimate at all. The Ontario letter expressly acknowledges that use of the clause is lawful. The Saskatchewan letter does not indicate one way or another whether using the clause is legitimate. The Alberta letter is also not express but seems to suggest that at least some uses of the clause are illegitimate. The authors observe that the ballot box constraint does not operate effectively for politically powerless groups and thus the majority could tyrannize the minority through use of section 33, “the very thing that the Charter was meant to shield against.” This observation seems to reject the premise of section 33, which provides for the triumph of majority rule over individual rights and the preservation of legislative supremacy over constitutional supremacy.

 

Finally, the letters differ on whether the problem at issue is due to the use of section 33 or the policy underlying its invocation. The Ontario letter takes issue only with section 33, expressly remaining neutral on the desirability of the underlying policy. In contrast, the Alberta letter expressly takes issue with the underlying policy and opposition to the notwithstanding clause is secondary (and a reminder that the Alberta government has not committed to its use at this point in time). The Saskatchewan letter falls somewhere between these two poles: it focuses predominately on use of the notwithstanding clause but also references potential harms of the policy.

 

Having reviewed the specific letters, I now turn to open letters more generally. I put forward a defence of such open letters and also suggest considerations for future drafters of open letters.

 

First, one should ask whether these open letters have value and, if so, what that value is. Are they merely navel gazing and self-important? Shouting into the void? Certainly, no government changed their policies in response to these letters, despite the letters being addressed to the government.

 

I suggest, however, that the real audience for these letters is not the government, but rather, the public, and thus these letters can play a valuable role in facilitating section 33’s political check. For the political check to operate effectively, the public must understand the government’s action: that the government has enacted policy using an exceptional process. It has overridden rights and not attempted to justify its policy using section 1, when some form of its policy could almost certainly be enacted through careful tailoring which meets the section 1 Oakes test. In short, the government is making a choice to unjustifiably limit rights. Under our constitutional regime, the public has an obligation to scrutinize that choice and either approve or condemn it. But members of the public may not be aware of their entitlements and obligations under the Constitution. They may not appreciate that the government has acted outside the usual process. They may not know the government could have pursued the same or similar policy under section 1 but chose not to try to defend it as a justifiable limitation. Regardless of whether they support the underlying policy or not, members of the public may well be concerned about the use of the notwithstanding clause and the cavalier attitude their government has demonstrated toward Charter rights. Law professors can provide the public with important information and context so they can more fully evaluate the government’s action. Thus, these sorts of letters can make the political check more meaningful and effective.

 

Every use of the notwithstanding clause likely chips away at the public and political norm that restrains its use, because it turns section 33 into something common and ordinary. Open letters from the academy can serve as a valuable reminder that the government has bypassed usual constitutional protections, and, in a constitutional democracy, this is exceptional, no matter how often it occurs.

 

In the future, law professors may want to consider whether to separate criticisms of the substantive policy from criticisms of the notwithstanding clause. I suggest that any use of section 33 must be carefully scrutinized by the public and that these open letters can assist in that scrutiny. This is true regardless of whether the underlying policy comes from a left-leaning government or a right-leaning government. The only anglophone governments to use the notwithstanding clause have been headed by conservative parties, but there’s no reason to think section 33 is exclusively a right-wing temptation. For example, one can imagine some left-wing support for use of the notwithstanding clause to facilitate prevention of and additional punishment for sexual violence or to further protect minority groups from harmful expression. But if law professors’ objections to the notwithstanding clause are tied to criticisms of particular policies, the letter may not serve to inform the public effectively about the important constitutional issue at stake, but may rather contribute to the perception that the academy is biased and thus ought to be ignored. Ontario’s letter can serve as a model in this regard. And, of course, this is not to say that law professors should always refrain from critiquing substantive policy! But, rather, my point is that the use of the notwithstanding clause is a distinct and independent issue that warrants its own critique, separate from whatever policy is pursued.

 

In summary, law professors have opposed, in different ways, governments’ use of the notwithstanding clause. One tool has been the open letter, which serves to communicate solidarity in opposition to the state’s exceptional departure from usual constitutional protections and processes. The open letter may contribute to informing the public about their constitutionally protected obligation to review the state’s decision to override rights.

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