The courts started it! That is the most common defence offered for Doug Ford’s use of the notwithstanding clause to pass Bill 28, legislation imposing a contract on Ontario’s education workers and forbidding them from striking in response.
He had no choice, according to his defenders. Assume that banning strikes was a necessary and proportionate response to the situation. Had he not invoked the clause, the bill might have been found unconstitutional on Charter of Rights grounds.
But not because the Charter actually protects the right to strike! Rather, it’s because of a 2015 Supreme Court decision that read a right to strike into the section of the Charter protecting “freedom of association.” Before then, the Court had found it contained no such right.
So – again, according to Mr. Ford’s defenders – he wasn’t really overriding the Charter. He was just overriding an errant Supreme Court ruling. More full-throated defenders of the notwithstanding clause broaden the argument. There have been a slew of similarly brazen court judgments over the years, they claim, that have interpreted the Charter to mean things its drafters never intended.
Therefore it is not the increasing use of the notwithstanding clause in recent years that has broken the constitutional bargain struck in 1982, as I argued here last week. Rather, it was the courts that broke it, and the governments that are repairing it.
Ontario brings CUPE education workers ‘improved offer,’ Premier Doug Ford says
What to make of this argument – “the courts started it?” First, if I can put it in similarly schoolyard terms: says who? The critics don’t agree with the court’s 2015 decision; presumably others do. There is no independent arbiter or objective fact that decrees this to be an example of indefensible judicial activism.
In which case this amounts to saying “governments should be able to override judicial rulings they don’t agree with on account of they don’t agree with them,” or in other words “I like the notwithstanding clause because I like the notwithstanding clause.” Which isn’t really much of an argument.
Second, suppose the court did get it wrong. Suppose it got a great many rulings wrong (I have my own list). Tough toenails.
The case for the Charter, and for the judicial review that gives life to Charter rights, was never that courts are infallible. The argument, rather, is that when a government makes promises of the kind contained in the Charter – we will not intrude upon the following freedoms, “subject only to such reasonable limits etc.” – it is preferable to have someone other than the government decide whether it has kept its word. Allowing governments to override court rulings amounts to letting them vouch for their own credit.
Courts get all kinds of things wrong, not just Charter decisions. They convict the innocent and free the guilty. That does not allow the government to try people in their place. Neither are the frequent errors of legislatures taken as justification for the executive to rule by decree.
Judicial review, for that matter, did not begin with the Charter. Long before 1982, the courts were tossing out laws passed by the legislatures, federal and provincial, on division of powers grounds. No notwithstanding clause was available to overturn these decisions – yes, even by “unelected judges.”
Third, how real is the problem of judicial activism, anyway? You can always point to this or that travesty of a decision – again, I have my own list – but the claim that a rogue Supreme Court has been routinely laying waste to the laws on the basis of extravagantly far-fetched interpretations of the Charter is unsupported by actual evidence. On the contrary, as often as not the court defers to the legislature where it ought to have intervened.
Unless, of course, you define any exercise of judicial review as judicial activism, which I suspect is what this is all about. It was not actually necessary for the Ford government to reach for the notwithstanding clause. Had it been challenged in court, it could have attempted to justify a ban on strikes as a “reasonable limit” in the circumstances.
And if it lost? It is almost always possible to repair the parts of a law ruled invalid by the court, achieving the same end by less over-broad means: for example, by going to binding arbitration.
More generally: Think the court tends to doctrinaire or poorly reasoned decisions? Put better judges on the bench. Or if there really is no way out – if the court has enshrined an interpretation of the Constitution that is fundamentally at odds with the plain sense of the text – then do what grown-up countries do: amend the Constitution.
If back-to-work legislation is a really vital part of the legislative arsenal that the court has truly put forever out of reach, seven provinces and the federal Parliament could make it constitutional again by next week.