Judicially Licensed Unconstitutionality.

• Author: Cyr, Hugo

INTRODUCTION 323 A. Laws for situations of necessity 330 B. "Necessity knows no law"? 330 C. Necessity as the Supreme Law? 332 D. The Necessity of Laws: Reference re Manitoba Language 333 Rights II. THE NORMALIZATION OF JUDICIALLY LICENSED UNCONSTITUTIONALITY: 338 THE SWING OF THEPENDULUM FROM NECESSITY TO CONVENIENCE (AND BACK?) A. Early Cases Limiting the use of JLU to similar 339 circumstances as those of Re Manitoba Language Rights (1985-1991) B. Swain and the Decoupling of the Initial Rationale for JLU 340 (1991) C. Schachter and using JLU for the purpose of avoiding 342 "equality with a vengeance" (1992) D. The Broken Taboo Against JLU in the Appellate Caselaw 344 (1997-2015) E. Bedford or using JLU out of mere convenience (2013) 349 F. Reconsideration of the Appropriateness of JLU (2016-2020) 353 G. Ontario v G and attempting to constrain the use of JLU 357 (2020) H. Reference re Code of Civil Procedure (Que), art 35 and the 364 Short-Lived Restraint on JLU (2021) I. A Revisionist Reading of Bedford in Albashir and the 370 Combination of JLU with Prospective Invalidation After the Suspensive Period (2021) III. JUDICIALLY LICENSED UNCONSTITUTIONALITY: THE STATISTICS 375 (1985-2020) IV. JUDICIALLY LICENSED UNCONSTITUTIONALITY: A PROPOSED INTEGRATED 384 FRAMEWORK CONCLUSION 390 INTRODUCTION

Canada prides itself on being a country living under a constitution governed by the rule of law. The preamble to the Constitution Act, 1982 (1) provides that "Canada is founded upon principles that recognize... the rule of law". Indeed, the rule of law has been said to be "clearly implicit in the very nature of a Constitution." (2) Constitutionalism and the rule of law "lie at the root of our system of government." (3) The rule of law is "a fundamental postulate of our constitutional structure." (4) It means that "all government action must comply with the law, including the Constitution." (5) It follows that "[a]t the core of the 'Etat de droit, as under the rule of law, lies the proposition that the relationship of the State to the individuals is regulated by law." (6) Without adherence to the rule of law, constitutionalism would be, at best, merely aspirational, or at worse, merely a rhetorical ploy. The particular limits that may be placed upon the State will, at the same time, designate the frontiers of the autonomy of the individuals. The individual can do everything, except what the law prohibits, while the State cannot do anything except as permitted by law. Protection against the arbitrariness of public authority requires such restrictions on the State and its organs.

That being said, we recognize that, at times, it may appear that acting by the requirements of the law would put the very existence of the State at risk. American judges have pithily remarked that their constitution was not a "suicide pact". (7) Without using such a colourful aphorism, judicial bodies applying the Constitution have taken similar views. The Privy Council, for example, not only allowed the suspension of the rules for the division of legislative powers in time of war, thus enabling the Canadian Parliament to adopt legislation that would normally come under the exclusive jurisdiction of the provincial legislatures, but it also left it to the central government to determine until when the suspension was justified beyond the end of the war. (8) The Supreme Court of Canada ("SCC"), in peacetime, made it possible for the federal Parliament to adopt temporary legislative measures that would normally fall within the exclusive jurisdiction of the provinces to combat an economic crisis characterized as a "national emergency". (9) These were creative jurisprudential developments that, while admittedly extending the four corners of the law, aimed at containing the exercise of State powers within the bounds of the law.

The SCC went much further in Re Manitoba Language Rights in bending the principle of the rule of law in response to a state of emergency. The Manitoba Legislature's "persistent violation of the constitutional dictates of the Manitoba Act, 1870" (10) had resulted in the fact that all the statutes it had adopted since the end of the 19th century were invalid for not having been adopted in both English and French. The emergency was not caused by external events, but by the very workings of the law itself. To prevent the chaos and large legal void that would have been created by the immediate invalidation of all Manitoba statutes adopted between 1890 and 1985, the SCC took the unprecedented measure to declare:

All Acts of the Manitoba Legislature which would currently be valid and of force and effect, were it not for their constitutional defect, are deemed temporarily valid and effective from the date of this judgment to the expiry of the minimum period necessary for translation, re-enactment, printing and publishing. (11) The Court wrote that it was "only in this way that legal chaos can be avoided and the rule of law preserved." (12)

Re Manitoba Language Rights took the Canadian judiciary down a slippery slope leading to weakened constitutional protections. Indeed, the SCC has since developed a habit of endorsing the temporary maintenance of laws that it considers unconstitutional. Other courts have followed the SCC's example and added this judicial mechanism to their toolbox. Thus, Re Manitoba Language Rights opened the door to what we call judicially licensed unconstitutionality ("JLU"). Contrary to the use of the notwithstanding clause of section 33 of the Canadian Charter of Rights and Freedoms (13) that may be used by legislators to shield statutes from the risk of having them declared unconstitutional, JLU, by definition, shields provisions that we know are unconstitutional. Indeed, it is a practice whereby the courts recognize that a statute is invalid and unconstitutional, but nonetheless, let it operate during a certain grace period to allow Parliament and Legislatures to remedy its deficiencies. The courts thus apply knowingly legally invalid norms during a set period. That period may also be judicially extended. Since Re Manitoba Language Rights, what was meant to be exceptional became normalized and courts came to use this technique rather casually--without all the media attention that is otherwise given to rare moments where the use of the notwithstanding clause is contemplated by legislators.

The recent decision of the SCC in Ontario (Attorney General) v G (14) tried to rein in JLU. In her majority opinion, Karakatsanis J proposed four remedial principles to guide the exercise of "principled remedial discretion" (15) by courts to determine when a suspended declaration of invalidity should be granted. Cote and Brown JJ dissenting, rejected this approach and favoured a return to a stricter categorical approach. Justice Rowe, in a separate opinion, proposed a return to a categorial approach, albeit one that would cover more situations than the one advocated by Cote and Brown JJ. While this decision appeared to have announced a more restrained use of JLU, the subsequent case of Reference re Code of Civil Procedure (Que), art 35 (16) seriously questions the hope that JLU would only be used in the most exceptional of circumstances.

In this article, we intend to offer reflections on the normalization of the exception in our constitutional order. In contrast to the enlightening analysis produced by others on the conceptualization of states of emergency through the reliance on the works of constitutional theorists, (17) ours will mainly be based on the actual practices of Canadian appellate courts. We present a genealogy of JLU based on an examination of all 147 appellate cases in Canada--be they from provincial courts of appeal, the Federal Court of Appeal, or the SCC--where suspended declarations of unconstitutionality have been used or discussed between 1985 and 2020. This study first aims to complete and update the portrait others have presented (18) on the use of suspended declarations. This will offer the appropriate contextual background to critically examine the SCC's recent attempt at regulating the use of JLU in Ontario v G.

This article begins with a general overview of the ways in which law may deal with state of emergency (Section I). The next section presents a genealogy of the use of JLU by appellate courts in Canada. It begins by explaining how JLU appeared in Re Manitoba Language Rights, how it evolved to become a mere tool of convenience, used to protect hypothetical popular sensitivities, and examines critically the recent attempts at curbing what ought to be its exceptional use (Section II). This story is put in perspective through to a statistical analysis of the use of JLU in Canadian appellate courts and the SCC (Section III). We conclude by offering a proposal to integrate most of the concerns of the three separate opinions in Ontario v G into a single analytical framework that would better respect the purposes of the rule of law (Section IV).

1. LAW AND NECESSITY

   Constitutional systems have developed a variety of approaches over the years to deal with emergencies. This chapter will present ways in which law has been intended to meet exceptional circumstances. While laws may be adopted to meet certain rare and yet forceable circumstances (A), there are other occasions where no preestablished rule may appear suited to meet the exceptional requirements of the moment. While some authors have claimed that necessity knows no law (B), or that necessity is its own law (C), the SCC, in Re Manitoba Language Rights, crafted out of a certain conception of the rule of law the idea of law as a necessity (D).

   1. LAWS FOR SITUATIONS OF NECESSITY

      There are the "easy" cases where laws are adopted, in advance, to address urgent and perilous situations such as natural disasters, insurrections, or terrorist attacks. The law then handles these events which, although rare, may take on a predictable form. These...