Here Be Unchartered Waters

• Author: Omar Ha-Redeye
• Date: September 16, 2018

Introduction

This week has been an unprecedented one in Canadian history, and one that will invariably result in development of novel Charter jurisprudence.

On Sept. 12, 2018, the Ontario legislature introduced Bill 31 – Efficient Local Government Act, 2018 in response to the Ontario Superior Court of Justice decision on Sept. 10, 2018 that ruled Bill 5 – Better Local Government Act, 2018 was unconstitutional, as it violated the s. 2(b) Charter rights of the candidates in the upcoming municipal election due to the timing of the Bill, and the impact on the voters due to its content.[1] This decision also ruled that the constitutional violation of the fundamental freedom of expression could not be demonstrably justified in a free and democratic society and saved by the reasonable limits clause under s. 1 of the Charter.[2]

In response to the court’s ruling, the government has invoked s. 33 explicitly in its introduction of Bill 31. This type of use of the notwithstanding clause is entirely unprecedented in Canada, and already has revealed some questions of profound importance.

Part 1 – Unprecedented Nature of this Invocation of Section 33

With the exception of Quebec, the notwithstanding clause has been used exceedingly sparingly in Canada. Quebec invoked it routinely under the Parti Québécois as a form of political protest, and then notably in 1988, following the Supreme Court of Canada decision Ford v. Quebec (Attorney General).[3] Although it was contemplated and introduced in Alberta, and passed but not brought into force in Yukon, the only province to actually implement it prior to this time is in Saskatchewan.

On April 9, 1984, in response to a breakdown in talks between employers and dairy unions, the Conservative legislature of Saskatchewan enacting The Dairy Workers (Maintenance of Operations) Act, S.S. 1983‑84, c. D‑1.1. The Act came into force immediately, and had the temporary effect of prohibiting dairy employees from striking, or from employers from locking them out.

The applicants, which consisted of 4 unions and 14 individuals, applied to the Court of Queen’s Bench for an application for a declaration that this Bill was unconstitutional, including on the grounds that it violated the fundamental freedom of freedom of association under s. 2(d) of the Charter. Although the Court of Queen’s Bench dismissed the application, the Saskatchewan Court of Appeal reversed this dismissal and found a s. 2(d) Charter violation.[4] The subsequent appeal to the Supreme Court of Canada ultimately found in the majority that either s. 2(d) was not violated, or that the Act could be justified under s. 1.[5]

However, prior to the decisions of the Supreme Court, the legislature of Saskatchewan introduced Bill 144 – The SGEU Dispute Settlement Act,[6] invoking s. 33 of the Charter in doing so. What is worth noting is that this Bill did not involve the same dispute with the same workers in the dairy industry. This was a Bill to address a labour dispute with the Saskatchewan Government Employees’ Union. It was therefore a new piece of legislation, and not invoked in a reactive manner to a specific judicial ruling on the same set of facts.

The preamble to the Bill also acknowledged that s. 33 was only being invoked given the pressing public nature of the dispute, as well as the legal ambiguities that were currently at stake due to the appeal underway,

Whereas Section 33 of the Canadian Charter of Rights an (sic) Freedoms, exists for the purpose of permitting publicly accountable legislators to finally determine essential economic and social policy; and
Whereas the present state of the law is unclear as to the meaning of certain provisions of the Canadian Charter of Rights and Freedoms and The Saskatchewan Human Rights Code

The invocation of s. 33 was therefore accompanied with a just as pronounced recognition of the rule of law, the courts, and the importance of judicial interpretation into these constitutional issues. What is clear is that this invocation of s. 33 was not done in a reactive and responsive manner to a judicial ruling that the province disagreed with.

More recently however, the Saskatchewan legislature has also invoked the notwithstanding clause in Bill 89 –The School Choice Protection Act/Loi sur la protection du choix d’école,[7] introduced on May 30, 2018. The legislative backdrop here is more complex, because although the legislature was also acting in response to a judicial decision, it was not technically one interpreting the provision of a new bill.

The Queen’s Bench for Saskatchewan ruled in Good Spirit School Division No. 204 v Christ the Teacher Roman Catholic Separate School Division No. 212,[8] that the province’s funding of non-minority faith students violated the fundamental freedom of conscience and religion under s. 2(a) of the Charter, was also discriminatory under s. 15(1), and could not be saved under s. (1).

Although the power exerted by the province here was under The Education Act, 1995,[9] and The Education...