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Yuan Yi Zhu: Fire any Supreme Court judge that tries to put limits on Section 33

The constitution must not be changed without democratic consent

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In a normal country, ideas about the ideal arrangements for society’s well-functioning are debated by the public and voted upon by either elected legislators or, in some cases, through direct democracy. But Canada isn’t a normal country.

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Last week, the Supreme Court heard oral arguments on the challenge against Quebec’s secularism law, which imposes all manners of restrictions on the public practice of religion in the name of secularism. For good measure, the legislature insulated it from constitutional challenge by invoking the notwithstanding clause.

Yuan Yi Zhu: Fire any Supreme Court judge that tries to put limits on Section 33 Back to video

Both the bill’s substance (with a few small exceptions) as well as Quebec’s invocation of Section 33 were upheld in the Quebec Court of Appeal. But critics of the law, supported by the federal government and numerous NGOs, have taken the case to the Supreme Court. They hope not only to strike down the law, but to introduce limits on the invocation of Section 33, a longstanding goal of a segment of the Laurentian elite (think Andrew Coyne).

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It is impossible to exaggerate how dangerous such an outcome would be for the future of the country. The law enjoys broad popular support in Quebec, and the notwithstanding clause has long been viewed as a necessary override for a bill of rights many in la belle province consider to be illegitimate. Any move against by the Supreme Court could lead to the beginning of the country’s breakup.

Yet there is little evidence that such concerns have percolated to the court or the advocates of finishing the country’s transformation into a judicial dictatorship, and possibly a rump state. Trump was of course invoked. Guy Pratte, the lawyer for the attorney general of Canada, claimed that if Section 33 were left alone, legislators could introduce slavery, a suggestion which did not find a ready audience even among their lordships. In any case, a legislature which is capable of introducing slavery is unlikely to feel bound by a scrap of paper.

But you could see why Pratte tried to use a hypothetical to challenge the constitutionality of a real law: the Supreme Court has held, for example, that a one-year mandatory minimum sentence for possession of child pornography is unconstitutional because the court can imagine scenarios in which possession of child pornography might not be that bad.

What about that old Roman tag, let justice be done, though the heavens fall? The problem is that nothing in the text of the Canadian Charter of Rights and Freedoms says that there are limits to the invocation of Section 33 beyond the fact that the legislature has to invoke it. Then the law is safe from the Charter for five years unless the notwithstanding clause is renewed. There are no other requirements, as the Supreme Court found in Ford v. Quebec (Attorney General) in 1988.

The text of the notwithstanding clause hasn’t changed since then: what the Canadian government is asking the Supreme Court of Canada to do is to amend the constitution without democratic consent. It is an attempt to relitigate the battle which Pierre Trudeau — who thought that a Canada without a constitutionalized bill of rights did not deserve to continue to exist as a state — lost in 1982 against the premiers, who insisted on safeguarding the prerogatives of the legislators and of the broader public through an override clause.

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Now, some readers may not like the idea of those who are religiously observant being barred from certain public sector jobs because they wear religious headgear. I share their dislike for Quebec’s law. But we live in a democracy, and democracies are free to pass laws that are stupid. Elected politicians do not have the monopoly on stupidity just as judges do not have the sole guardianship of wisdom, as some of the Supreme Court’s justices believe.

In the end, you can vote out the former, but you’re stuck with the latter. And the latter have been racking up decisions that are not only outrageous to large segments of the public, but have done so in spite of the text, history and original public meaning of the law: declaring bike lanes protected by the Charter, mandatory minimums for child pornographers in violation of it, and drug use, prostitution and assisted suicide guaranteed by it. The court is drifting from the letter and spirit of the law with alarming regularity, which is why legislatures are responding in turn, by invoking the clause with greater frequency.

If the Supreme Court continues on its trajectory and decides to throw Canada’s future into the unknown by inventing limits on the notwithstanding clause, Parliament should use its powers under Section 99 of the Constitution Act 1867 to remove from office any judge who voted for such restrictions. Judges hold office “during good behaviour” and trying to eviscerate the Canadian constitution would definitely not be that.

Yuan Yi Zhu is an assistant professor in international relations and international law at Leiden University, The Netherlands, a member of the Macdonald-Laurier Institute’s Judicial Foundations Project, and a research associate at the University of British Columbia’s Research Group for Constitutional Law and Legal Studies.

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