Is it Time to Dust-Off Section 28 of the Charter?

Introduction

Quebec has passed Bill 21, An Act Respecting the Laicity of the State (“the Act”) which bans some public sector workers from wearing religious symbols while on the job. The Act uses the notwithstanding clause of the Charter which means the Act remains in force despite potential Charter violations, of which there are at least a few.[1] However, section 28, the gender equality requirement of the Charter, which states that the rights guaranteed in the Charter must apply equally to men and women, may be the basis for a constitutional challenge to the Act. The notwithstanding clause does not apply to this section. While this section is not often used to challenge laws, the new Quebec law may provide an optimal opportunity to test its powers.

What is the Gender Equality Requirement?

Section 28, which for clarity sake, will be called the gender equality requirement, states: “Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons”.[2] Unlike section 15, the equality rights section of the Charter, the gender equality requirement only protects rights guaranteed in the Charter, not equality rights generally.[3]

To date, legal scholars have questioned the usefulness of this section.[4] It has not been used in any landmark gender equality cases. Gender equality rights are typically argued under the equality rights section (s 15) of the Charter.[5] However, constitutional legal scholar Peter Hogg suggests that the gender equality requirement is actually stronger than the equality rights section for two reasons:

- The notwithstanding clause does not apply to section 28;

- The government may not be able to justify a law under section 1, the justification clause, which would allow an act to remain in force even if there were a violation of gender equality rights if section 28 were to be invoked.[6]

The fact that the notwithstanding clause does not apply to the gender equality requirement was the result of a hard-fought movement by Canadian women as part of the patriation process for Canada’s Constitution. Women lobbied to ensure their equality rights were properly reflected in the Charter. The initial successful fight was to ensure that both equality rights (s 15) and the gender equality requirement (s 28) were included in the Charter. However, at the end of negotiations, the notwithstanding clause had been applied to both those sections, making them powerless once the notwithstanding clause was used. Women then fought to have sections 15 and 28 removed from the reach of the notwithstanding clause. They were unsuccessful with section 15, but did successfully free section 28 from the notwithstanding clause.

The equality rights requirement, as it is written, may mean that even where a law is passed that uses the notwithstanding clause and therefore allows for the infringement of certain Charter rights, it may not be able to do so in a way that has a disproportionate effect on one gender.[7]

There is an argument that Quebec’s most recent use of the notwithstanding clause has a disproportionate effect against women. This would be a violation of the gender equality requirement.

What is An Act Respecting the Laicity of the State?

The Act

Quebec’s new Act is based on the desire to separate church and state.[8] The Act bans some public employees, including teachers, judges, and police officers from wearing religious symbols while on the job.[9] It also makes promotion impossible for those who continue to wear these symbols. Additionally, persons receiving public services must have their face uncovered when receiving the service.[10] For example, a Muslim woman wearing a niqab would have to remove the cloth covering her face to ride public transit.

The Act invokes the Charter’s notwithstanding clause which allows an Act to continue in force even if it infringes on certain Charter rights. These rights include fundamental freedoms, liberty rights, and equality rights.[11] In order to use this clause, the government must clearly state in the law itself that the law will operate despite its potential Charter violations. The power of the clause only lasts for five years. If the clause is not re-enacted after this period, the notwithstanding clause no longer applies to it.[12]

The Issues

The Act has received enormous backlash due to its impact on Charter rights. The Act likely infringes on individuals’ freedom of religion and their equality rights because the ability to freely practice religion, at least while in certain jobs, has been significantly impacted.

In terms of the limit on freedom of religion, the Act forbids individuals in a number of public service positions from wearing religious symbols, which, for many religions, is part of their religious practice. The Act could also violate equality rights on the basis of sex and religion, both protected grounds under the Charter, because it discriminates against people of specific religions who wear religious symbols, many of whom are women. People who do not associate with any religion do not have to face the same hurdles to work in these positions.

The use of the notwithstanding clause means the Act remains in force despite the fact that it likely infringes on these Charter-protected rights.

The Gender Equality Requirement vs the Notwithstanding Clause

The gender equality requirement may be used to find the Act’s use of the notwithstanding clause to be unconstitutional. The notwithstanding clause will violate the gender equality requirement if it is found that, as a result of the clause, the Act applies disproportionately to one gender over the other – that the rights guaranteed in the Charter are not being applied equally to men and women.

There are strong arguments to be made that the use of the notwithstanding clause in the Act will allow discrimination against women, and more specifically, Muslim women. The population of Muslim people in Quebec, is much greater than it is for other religious populations such as Jews and Sikhs.[13] Muslim women are more affected by the Act due to the type of religious symbols they wear, such as niqabs, hijabs and burkas.

Legal scholar Kerri Froc argues the disproportionate effect of the Act is clear: "No one appears to be denying that Muslim women are disproportionately affected by Bill 21, regardless of fact that it applies to other religious clothing/symbols. This is an unequal violation of s.2(a), over and above Bill 21's discriminatory purpose and effect."[14] As a result, more women than men will have to remove their religious symbols to work certain jobs or use public services.

The use of the notwithstanding clause is therefore allowing the violation of equality rights guaranteed in the Charter. Men will not face the discrimination Muslim women do when it comes to working and living in Quebec because of the use of the notwithstanding clause. The notwithstanding clause is therefore a violation of the gender equality requirement.

In the event the gender equality requirement renders the use of the notwithstanding clause unconstitutional, the Act would no longer be able to remain in force as a result of its infringement on Charter-protected freedom of religion and equality rights.

Conclusion

The time has likely come to use section 28 to challenge the use of the notwithstanding clause to override Charter infringements. Senator Marilou McPhedran presented this idea years ago when Quebec attempted to enact a similar law as part of their Charter of Values. She stated: “If the Parti Quebecois had passed its proper charter of values, which, among other things, prohibits the wearing of religious symbols in the performance of public duties, we may have seen a contest between section 33 and section 28.”[15]The exact same situation has arisen in 2019 and it may be the perfect time to test the power of section 28 to flex its muscle.

[1] Canadian Charter of Rights and Freedoms, s 33, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 . The Act likely infringes on individuals’ freedom of religion under section 2(a) and gender and religious equality rights under section 15.

[2] Ibid, s 28.

[3] Marilou McPhedran, Judith Erola & Loren Braul, “’28 – Helluva Lot to Lose in 27 Days’: The Ad Hoc Committee and Women’s Constitutional Activism in the Era of Patriation” in Lois Harder & Steven Patte, eds, Patriation and Its Consequences – Constitution Making in Canada (Vancouver: UBC Press, 2015) 203 at 218.

[4] Ibid at 217.

[5] Department of Justice, “Section 28 – Gender equality rights” (17 June 2019), online: < https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art28.html>.

[6] Peter Hogg, Constitutional Law of Canada, 5th ed (Toronto: Carswell, 2007) at 55.17(c).

[7] Department of Justice, supra note 5.

[8] An Act respecting the Lacitie of the State, SQ 2019, c 12, Preamble.

[9] Ibid at s 6, Schedule II.

[10] Ibid at s 8.

[11] Supra note 1.

[12] Ibid at s 33(3)-(4).

[13] Kerri Froc, “Shouting into the Constitutional void” (24 June 2019), online (blog): Double Aspect < https://doubleaspect.blog/2019/06/24/shouting-into-the-constitutional-void/>.

[14] Kerri Froc, “No one appears to be denying that Muslim women are disproportionately affected by Bill 21, regardless of fact that it applies to other religious clothing/symbols. This is an unequal violation of s.2(a), over and above Bill 21's discriminatory purpose and effect” (17 June 2019 at 9:30pm), online: Twitter <https://twitter.com/KerriFroc/status/1140824103365959680>.

[15] Supra note 3 at 219.

Notwithstanding Clause

33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.

What is the notwithstanding clause?

Section 33 of the Charter of Rights and Freedoms is commonly referred to as the “notwithstanding clause.” Its function is to prevent a court from invalidating a law that violates Charter provisions relating to fundamental freedoms (section 2), legal rights (sections 7-14), or equality rights (section 15).

Provincial or federal governments can use section 33 when they want to pre-emptively shield a law from judicial invalidation on these specific grounds, or when they want to revive a law that has already been invalidated by a court on these grounds. While an invocation of section 33 expires after five years (as per section 33(3)), there is no limit on the number of times that the clause can be reused for a given law (section 33(4)).

Crucially, section 33 cannot be used to shield a law from invalidation on the grounds that it violates democratic rights, mobility rights, or minority language rights under the Charter. It also can't be used to shield a law from invalidation on the grounds that it violates the Aboriginal and Treaty rights that are "recognized and affirmed" by section 35 of the Constitution Act, 1982.

Why do we have a notwithstanding clause?

When the Charter was being drafted, federal and provincial leaders were divided on whether it should contain a notwithstanding clause. For the most part, the clause's proponents (such as the premiers of Saskatchewan and Alberta) argued that it was a democratic backstop that would prevent unelected judges from holding too much power vis-à-vis the interpretation and enforcement of the Charter. By contrast, those opposed, including then Prime Minister Pierre Elliott Trudeau, thought that the clause could undermine the Charter by letting legislatures ride roughshod over rights. In the end, Trudeau was forced to compromise on the notwithstanding clause to ensure that the Charter was passed with the support of most provinces (all except Quebec).

When has it been used?

The notwithstanding clause has never been used by most provinces, nor by the federal government. It has, however, been used by Quebec, Saskatchewan, Alberta, and, most recently, Ontario. Here are a few well-known examples:

Quebec

Quebec did not sign the Constitution Act 1982 and subsequently passed legislation that added a standard notwithstanding clause to every law in force at the time. The clause was added to every new law passed until December 2, 1985, when a new government stopped the practice.
In 1988, Quebec used the clause in response to a Supreme Court of Canada decision that the province’s law allowing French-only on commercial signs offended freedom of expression.
In 2019, the Legault government used the clause preemptively to pass Bill 21, a law that prohibited certain public sector workers from wearing religious symbols in their workplaces.
In 2021, the Legault government used the clause preemptively for a second time to pass Bill 96, a law that included sweeping amendments to Quebec's Charter of the French Language, e.g. the expansion of the investigative powers of Quebec's language office.

Saskatchewan

Saskatchewan added the clause to protect strike-ending legislation in 1986. The government used the clause because they thought the law forcing strikers back to work would violate freedom of association. However, the clause was removed when the Supreme Court said that the law would not affect Charter rights.

Ontario

In 2021, the Ontario government used the notwithstanding clause for the first time to revive a law that was struck down by the Ontario Superior Court on free expression grounds. The law placed a $600,000 limit on expenditures for third party political advertising that applied for a full-year before the beginning of an official election campaign.

Dialogue Theory

What is ‘Dialogue Theory’?

‘Dialogue theory’ is a particular thesis that describes the relationship between the legislative and judicial branches of government. Put most simply, it is the idea that “Canadian legislators are engaging in a self-conscious dialogue with the judiciary.” This is an ongoing process that, over time, can result in a variety of responses.

Charter dialogue originated in Canada from the introduction of the Charter of Rights and Freedoms, 1982. According to this theory, interaction “resembles a tennis match between branches about the compatibility of the policies at stake with the bill of rights.” The judiciary’s role is to give meaning to constitutional text by determining a given law’s consistency with the Constitution and Charter. The government is then able to engage with court judgments and respond accordingly. Parliament may choose to re-work or abandon legislation altogether. Thus, legislative and judicial institutions participate in a dynamic exchange.

One of the ways dialogue can be measured is by looking at legislation that has been passed by Parliament and subsequently rejected by the Supreme Court. For example, from 1982 to 1995, Hogg, Thornton & Wright found 82% of laws struck down by the Court caused some sort of legislative response. Whether they were revisions, amendments, or scrapping of the bill altogether, lawmakers responded to what judges had to say.

Criticism

Dialogue theory is not without controversy. Criticism comes from the perception that dialogue is one-sided. For example, Hogg, Thornton & Wright found that legislation that went back to the drawing board was often re-drafted to reflect the same objective as the first attempt. In these cases, Parliament was perceived not to have fulfilled its end of the exchange; lawmakers neglected to listen to judicial advice. Further, because the 'notwithstanding clause' gives Parliament the final say for breaches of certain sections of the Charter, there is no guarantee that lawmakers will comply with judicial advice. This potential, along with decisions by Parliament that ignore Court decisions, undermine the theory that there is an ongoing dialogue.

Peter W Hogg & Allison A Bushell, “The Charter Dialogue Between Courts and Legislatures” (1997) 35 Osgoode Hall LJ at 101.

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act 1982, being Schedule B to the Canada Act, 1982 (UK), 1982, c 11 .

Emmett Macfarlane, “Conceptual Precision and Parliamentary Systems of Rights: Disambiguating ‘Dialogue’” (2012) 17(2) Review of Constitutional Studies at 75.

Charter, supra note 2; Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11; Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5.

Peter W Hogg, Allison A Bushell Thornton & Wade K Wright, “Charter Dialogue Revisited – Or ‘Much Ado About Metaphors’” (2007) 25 Osgoode Hall LJ at 196.

Ibid.

Section 33(1) of the Charter states that “Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of Charter.”

The Right to Vote

Until 1982, there was no constitutionally protected right to vote in Canada. Instead, the right to vote was provided by ordinary legislation which, at times, excluded parts of the population. What began as a right conferred only on white male landowning citizens, slowly evolved to extend to women, Indigenous Peoples, ethnic minorities, and all economic classes of people.

Chief Justice McLachlin of the Supreme Court of Canada, reflecting on the history of Canadian democracy, referred to it as a “history of progressive enfranchisement.”[1] She called it a “steady march to universal suffrage [which] culminated in 1982, with our adoption of a constitutional guarantee of the right of all citizens to vote in s. 3 of the Charter.”[2]

Section 3 of the Canadian Charter of Rights and Freedoms reads:

Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.

The right to vote is unlike other constitutional rights and freedoms, such as equality rights, freedom of religion and conscience, and the right to life, liberty and security of the person. The legislature may override these rights and freedoms by invoking section 33 of the Charter, but the right to vote is beyond the reach of Parliament and the provincial legislative assemblies. While Canadian lawmakers have the power to pass legislation “notwithstanding” the fact that a court may find it contravenes certain sections of the Charter, the right to vote cannot be overridden. Thus, it may be regarded as a belonging to a higher order of rights that, in the words of Supreme Court Justice Bastarache, are clearly placed “at the heart of our constitutional democracy.”[3]

A Literal Reading or Broad Reading

On its face, section 3 provides for an unequivocal right to vote in provincial and federal elections. Other than citizenship, it provides no explicit restrictions on the right to vote. In interpreting the content of section 3, courts have had to determine whether it should be read literally or purposively. That is, should the court adhere to a plain reading of section 3 or should it read in implicit restrictions and democratic ideals?

As for the types of votes to which the right to vote pertains, the Supreme Court of Canada has adhered to a plain and literal reading. Justice L’Heureux-Dubé, writing for the Court’s majority, said, “Section 3 of the Charter is clear and unambiguous as is its purpose.”[4] It specifically limits the right to vote to elections of provincial and federal representatives. By implication, there is no constitutional right to vote in municipal elections, nor in referenda.

Justice Cory, in dissenting reasons, would have extended the right to vote beyond the two sorts of elections explicitly referred to in section 3. He said, “[In] the interpretation of all enfranchising statutes the provisions granting the right to vote should be given a broad and liberal interpretation. Every effort should be made to interpret the statute to enfranchise the voter.”[5]

In the early days of the Charter, some Canadian courts saw internal limitations to the right to vote. That is, reasonable limitations (such as age and residency) were regarded as implicit in section 3. A Manitoba trial court recognized certain “rational dimensions” of the right to vote. Just as there are basic conditions on citizenship that are not expansively described in the Charter, there are also inherent attributes of the voter that are not expressed in section 3.[6]

The Supreme Court of Canada ultimately rejected the approach of recognizing inherent limitations in section 3, preferring to justify limits on voter enfranchisement through section 1 of the Charter.[7] Section 1 provides that all Charter rights are “subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Thus the only inherent limitation contained in section 3 is citizenship.

Federal Court Justice Strayer described the proper approach to section 3:

It is quite clear in section 3 who are the holders of the right (“every citizen of Canada”) and what they are thereby entitled to do (“to vote in an election of the members of the House of Commons...”). I am not deterred in this finding by the argument of the defendant that the section cannot be applied literally because there are some, such as infants, who clearly should not have the right to vote. I do not need to define here who may properly be denied the vote; that issue must be determined in each case under section 1 of the Charter.[8]

Age: a Reasonable Limit on the Right to Vote

The requirement that Canadian voters reach the age of 18 by election day is, on its face, an infringement of the right to vote guaranteed to every citizen in section 3. Therefore, it must be asked how laws which deny the vote to mature 16 or 17 year-olds can be justified. The simple answer is that section 1 of the Charter “allows Parliament to make such choices as long as they are rational and reasonable limitations which are justified in a free and democratic society.”[9]

A judgment of the Alberta Court of Queen’s Bench articulates the reasoning behind age restrictions on voting. The objective of an age requirement is obvious: without one, even infants would be qualified to vote. It is a pressing objective to ensure, as much as possible, that the electorate is mature enough for rational and informed decision making. Thus, the legislature’s decision on where the line should be drawn deserves deference as long as it falls within a reasonable range of choices.[10]

The court recognized that people mature at different rates and there may be some well-informed and mature 16 and 17 year-olds who are excluded from voting. Nonetheless, a line must be drawn somewhere.[11] The decision of Canadian lawmakers to draw the line at age 18 seems reasonable when we consider that, in our society, 18 is the age at which most students have finished high school and have begun to make decisions about their future and their place in society. The life experience and burgeoning responsibility that most Canadians have by age 18 make it a reasonable legislative choice for minimum voting age.[12]

Unconstitutional Limits: Mental Disease, Judgeship, Incarceration

Aside from the minimum voting age, Canadian courts have struck down all legislated restrictions on the right of Canadian citizens to vote in elections.

In 1988, the Federal Court of Canada struck down legislation that denies the right to vote to citizens diagnosed with a “mental disease.”[13] The court ruled that this category included people with afflictions that in no way impact the ability to vote. Furthermore, it could also be argued that the law is too narrow because it does not affect people who may have mental diseases but are not confined to a mental hospital.[14] Because this limitation was arbitrary, it could not be justified as a reasonable limit prescribed by law.

Also in 1988, the Federal Court struck down legislation that restricted judges from voting.[15] The court rejected the government’s reasoning behind the law: that judges must not only be politically neutral, but also perceived by the public as such.[16]

Since the Supreme Court of Canada’s 2002 ruling in Sauve v. Canada,[17] the only Canadian citizens restricted from voting in federal and provincial elections are those under the age of 18 and the Chief Electoral Officer. The Sauve decision rendered the last category of disenfranchisement – penitentiary inmates serving sentences of two years or more – an unconstitutional limit on the right to vote.

The government argued that taking the right to vote from prisoners served two objectives: to enhance civic responsibility and respect for the rule of law, and to provide additional punishment. The Court rejected these objectives as vague, symbolic and rhetorical.[18] The Court also failed to find a pressing and substantial purpose that might reasonably justify such a restriction.[19]

The Court went on to say that taking away the right to vote sends a message that is contrary to the values of Canada’s democracy. These values include that democracy is more important than criminal punitive measures,[20] and universal enfranchisement means that “moral unworthiness” is not a legitimate reason for taking away the right to vote.[21]

Absentee Voting

In 1983, British Columbia was one of three Canadian provinces that did not have legislation to allow temporarily absent residents to cast ballots.[22] This state of affairs resulted in a constitutional challenge from a British Columbian who was away at university in Ontario when a provincial election was called. The British Columbia Court of Appeal agreed that elections are often unpredictable in our Westminster system of governance, so it is impractical to expect all residents to plan to be in the province for elections.[23] Also, given the relatively inexpensive means of providing for absentee voting, the lack of any such provision cannot be justified as a reasonable limitation of the right to vote.[24]

Regulation of Elections

While the question of who has the right to vote has been read narrowly and literally, the Supreme Court has been more willing to interpret what section 3 implies about how the electoral process should operate. Section 3 tells us that every Canadian citizen has the right to cast a ballot in federal and provincial elections, but in the words of Chief Justice McLachlin, “more is intended [in the right to vote] than the bare right to place a ballot in a box.”[25] The Court has used the concepts of “effective representation” and “meaningful participation” in judgments that flesh out the requirements and constraints that the right to vote puts on electoral and political processes. The rules surrounding the regulation of political parties and the administration of elections impact on the full meaning of the right to vote.

Electoral Boundaries and “Effective Representation”

The principle of “one person, one vote” is of fundamental importance to mature democracies. Accordingly, the populations of each electoral district should be as similar as is practical. However, the Supreme Court of Canada has ruled that achieving absolute parity amongst electoral districts is not the preeminent goal of Canadian democracy. Rather, the meaning of the right to vote is “not equality of voting power per se, but the right to ‘effective representation.’”[26]

The principle of “effective representation” recognizes the distinctive and divergent interests of Canada’s regions. Northern and rural voters often have political concerns that differ from those of southern and urban voters. “Factors like geography, community history, community interest and minority representation may need to be taken into account to ensure that our legislative assemblies effectively represent the diversity of our social mosaic.”[27]

Just how far the quest for “effective representation” will be permitted to detract from strict voter parity has not been made explicit by the Court. Much deference is given to government in crafting effective electoral boundaries, but “respect for individual dignity and social equality mandate that citizens’ votes not be unduly debased or diluted.”[28] What exactly would amount to an undue dilution seems to be left for determination on case-by-case basis. In the Saskatchewan Electoral Boundaries case, the Court recognized a 25% deviation from parity as acceptable means of recognizing the political interests of voters in northern and rural districts.

At the federal level, section 37 of the Constitution Act, 1867, provides for the number of members of Parliament for each province. Population patterns have changed significantly since 1867, with populations growing vastly in some provinces while shrinking or remaining stable in others. Although the number and allocation of seats in Parliament is, to some degree, subject to constitutional amendment, this means that there may be great disparity in the ratio of population to representation from province to province. Nonetheless, this situation is one that is prescribed by the Constitution, and since one part of the Constitution may not conflict with another part, section 3 of the Charter may not be applied to rectify this sort of disparity.

The Regulation of Parties and “Meaningful Participation”

In 1999, the leader of the Communist Party of Canada challenged legislation that provided certain economic benefits to political parties only if they fielded candidates in at least 50 electoral districts.[29] The rationale for such a system was to promote parties that have potential to form a majority in Parliament, and thus to avoid a highly fractured parliament.

The Supreme Court of Canada rejected this reasoning and struck down the 50-candidate rule. The Court ruled that the purpose of voting is more than merely the outcome of the election. The right to vote involves the right to “meaningful participation”; it recognizes the intrinsic value of voting regardless of the results of an election. Thus, the right to vote is infringed if laws impede the ability of smaller parties to promote themselves.

Limits on Financial Contributions to Political Parties

The Canada Elections Act sets limits on the amount of money that individuals or groups may contribute to a political party’s campaign fund. In 2000 this law was subjected to a constitutional challenge, which included the claim that it violated the right to vote. The Supreme Court of Canada ruled that the opposite was the case: legislated limits on donations to political parties do not infringe the right to vote, but rather enhance the right to vote.

The Court focused on the “informational component of an individual’s right to meaningfully participate in the electoral process.”[30] That is, to exercise the right to vote in meaningful manner, a citizen must “reasonably be informed of all party choices.”[31]

Without spending limits, the political discourse would be dominated by the wealthy segments of society. The voices of the less affluent segments of society and the political parties that represent their views would be “drowned out”; the political discourse would be “monopolized” by parties which appeal to wealthy voters.[32] “This unequal dissemination of points of view undermines the voter’s ability to be adequately informed of all views.”[33]

Further Reading

Jim Young, “Reference re Provincial Electoral Boundaries (1991) – Electoral District Boundaries and the Right to Vote” Centre for Constitutional Studies (14 June 2010).

Jim Young, “Sauvé v. Canada (1993) – Voting Rights for Prisoners” Centre for Constitutional Studies(26 May 2010).

Jim Young, “Harvey v. New Brunswick (1996) – The Right to be Qualified for Membership in the House of Commons or a Legislative Assembly” Centre for Constitutional Studies (29 June 2010).

Jim Young, “Sauvé v. Canada (2002) – Limits on Voting Rights for Prisoners” Centre for Constitutional Studies (26 May 2010).

Jim Young, “Figueroa v. Canada (2003) – and Registered Party Status” Centre for Constitutional Studies (25 June 2010).

“Major Court Cases Related to Federal Elections Legislation” Elections Canada.

“Voting in Canada: How a Privilege Became a Right” CBC Digital Archives.

[1]Sauvé v. Canada (Chief Electoral Officer), [2002] SCC 68 at para.33.

[2] Ibid.

[3] Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877 at para.79.

[4]Haig v. Canada (Chief Electoral Officer), [1993] 2 S.C.R. 995 at 47-48.

[5] Ibid. at 76.

[6] Badger v. A.-G. Manitoba(1986), 30 D.L.R. (4th) 108 (Man. Q.B.) at 112.

[7] Harvey v. New Brunswick (Attorney General), [1996] 2 S.C.R. 876 at para.30.

[8] Belczowski v. Canada, [1991] 3 F.C. 151 (T.D.) at 159.

[9] Supra note 1 at para. 89.

[10]Fitzgerald v. Alberta, 2002 ABQB 1086 at para.56.

[11] Ibid. at para. 69.

[12] Ibid. at para. 70.

[13] Canadian Disability Rights Council v. Canada, [1988] 3 F.C. 622 at 624.

[14] Ibid. at 625.

[15] Muldoon v. Canada, [1988] 3 F.C.R. 628 (T.D.).

[16] Ibid. at 632.

[17] Supra note 1.

[18] Ibid. at para. 24.

[19] Ibid. at para. 26.

[20] Ibid. at para. 40.

[21] Ibid. at para. 44.

[22] Hoogbruin v. A.G.B.C., 1985 CanLII 335 (BC C.A.) at para. 8.

[23] Ibid. at para. 12.

[24] Ibid. at para. 13.

[25]Figueroa v. Canada (Attorney General), [2003] 1 S.C.R. 912, 2003 SCC 37 at para. 19.

[26]Reference re Prov. Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158 at 183.

[27] Ibid. at 184.

[28] Ibid. at 188.

[29] Supra note 25.

[30]Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827, 2004 SCC 33 at para. 71.

[31] Ibid.

[32] Ibid. at para. 72.

[33] Ibid.

Senator Hugh Segal on Citizenship, Parliament and the Charter Override Taboo

On August 12, 2009, the Centre for Constitutional Studies interviewed Conservative Senator Hugh Segal. Earlier this year, the senator introduced Bill S-225. This private member’s bill would invoke section 33 of the Canadian Charter of Rights and Freedoms to protect the citizenship oath’s pledge of allegiance to the Queen from challenge under the Charter. The Centre was interested in the senator’s views on the use of section 33, the controversial “notwithstanding clause”.

Senator Segal confirmed that he expects debate on his bill to resume this fall. Though he hopes to call for a vote in the Senate this year, he said the “antiquated procedures” of the Senate may delay the timetable.

Asked if he is deliberately disturbing a taboo against use of the notwithstanding clause, Senator Segal offered his understanding of the genesis of the clause and the way it is viewed now. Referring to his own involvement in the intergovernmental negotiations that produced the Charter, he explained that Premiers Peckford of Newfoundland and Blakeney of Saskatchewan proposed the override clause as a way to reconcile a constitutional bill of rights with the British model of parliamentary sovereignty. The notwithstanding clause offered a solution to an impasse. The architects of the Charter override saw it as a way to allow Canadian legislatures to “particularize” the targeting of government programs to the needs of specific groups, even if the courts found such programs contrary to their interpretation of the Charter.

Returning to Bill S-225, Senator Segal stressed that he did not introduce it to produce debate on the notwithstanding clause. Rather, he said, his view is that something as fundamental as the citizenship oath should not be decided by a court, but should be for Parliament to determine. Segal stresses that Parliament has the right to change the oath. In his view, though, it would be a distortion of the idea of a citizenship oath if people who are not yet citizens could go to court to use the Charter to “quash” another part of the constitution: the Queen. He explained that section 33 is part of his proposal because he was advised that it would offer the only way to insulate the oath from the courts.

Discussion turned to the question of the appropriate time for Parliament or a legislature to invoke the notwithstanding clause; that is, whether it should be used proactively to head off a court challenge or only in reaction to a decision from the courts. Senator Segal admitted that some parliamentarians might be more comfortable invoking section 33 after a court decision, but he sees no consensus in the Senate on the appropriate use of the Charter override. He said that section 33 has become associated with an “abject taboo feeling” about use of the override, which is “not substantiated by the framers’ intent.” He does not yet see parliamentarians distinguishing between pre-emptive and reactive uses of the notwithstanding clause, but he does see potential for a “good debate” on the issue if the bill goes to a Senate committee for study.

Senator Segal said that senators often introduce legislation to force people to engage with an underlying problem, or to bring focus to an underlying principle. In this case, he sees the underlying problem in the Supreme Court of Canada’s decision that people who are not yet citizens may use the Charter once they are on Canadian soil. He alluded to recent visa restrictions on some countries (Mexico, Czech Republic) as another reflection of this problem. The underlying principle he wants to emphasize is that Parliament may determine the terms of the citizenship oath. Segal pointed out that a government member does not introduce a private member’s bill without approval from the relevant minister – in this case, the Minister of Citizenship, Immigration and Multiculturalism.

Asked whether the defeat of his bill might help to cement a constitutional convention against use of section 33, Segal said he does not see how a defeat in the Senate could have any important bearing on the strength of the notwithstanding clause taboo. He discussed the sources of the bias against using section 33, highlighting Premier Bourassa’s use of section 33 to re-enact parts of Bill 101 (Quebec’s French language charter), and the immediate hostile reaction when Alberta briefly proposed to use the clause in legislation to compensate victims of forced sterilization. Senator Segal said these precedents are “more salient” than a defeat of Bill S-225 could ever be. He alluded to a “press bias” against the notwithstanding clause, but said most people who know about his bill see it as inconsequential.

Senator Segal said that it is nonetheless important to “liberate” section 33, which was never conceived as a “pernicious way to interfere with people’s rights.” Referring to his view that the Charter override’s purpose is to allow legislatures to target programs at classes of beneficiaries, he said it would be a “huge mistake” to leave aside the legislative tool “simply because it offends some people.” He foresees that “we will need the instrument of section 33 in years ahead,” so he wants to keep the override option available, if seldom used.

Same-Sex Marriage

In 2005, the Marriage for Civil Purposes Act,[i] also known as Bill C-38, became law. This Act gives same-sex couples the legal right to marry, making Canada only the fourth country in the world to legalize same-sex marriages.[ii] Prior to this enactment, the courts in eight provinces[iii] struck down the traditional definition of marriage as a violation of section 15 of the Canadian Charter of Rights and Freedoms.[iv]

Traditional Definition of Marriage

The traditional definition of marriage was "the lawful union of one man and one woman to the exclusion of all others." In other words, only two people of different sexes could legally marry.[v]

Evolution of the Right to Same-Sex Marriage: A Brief History

(a) Halpern v. Canada

The first landmark case was Halpern v. Canada[vi]. In this case, two same-sex couples were married in a religious ceremony at a Christian Church. The Ontario government, however, refused to register the marriages, arguing that the legal definition of marriage did not include same-sex marriages. The couples took the issue to court.

The Ontario Court of Appeal concluded that the traditional definition of marriage was a violation of the couples' equality rights under section 15 of the Charter. The "one man and one woman" requirement in the definition created a formal distinction between opposite-sex and same-sex couples on the basis of sexual orientation, a prohibited ground of discrimination under section 15. Furthermore, exclusion from the institution of marriage sends the message that same-sex couples are not capable of forming loving and lasting relations, and that same-sex relationships are not worthy of the same respect and recognition as opposite-sex relationships. As such, it offends the dignity of persons in same-sex relationships.

The Court of Appeal went on to say that the violation was not reasonable or justified under Section 1 of theCharter. The federal government argued the exclusion of same-sex couples from marriage was necessary to encourage procreation and child-rearing. The Ontario Court of Appeal disagreed and concluded that even if the encouragement of procreation and child-rearing was an important public objective, it was not necessary to exclude same-sex couples from marriage in order to achieve this goal. Heterosexual couples would not stop having children because same-sex couples were permitted to marry. Another argument for same-sex marriage was that heterosexual couples often do not procreate, while many same-sex couples have and raise children. Finally, the exclusion of same-sex couples from marriage was regarded as a very severe violation of the couples' equality rights, as the couples were excluded from a fundamental societal institution. Finally, as same-sex couples were excluded from a fundamental societal institution (marriage), this exclusion was regarded as a very severe violation of their section 15 equality rights.

The Court of Appeal declared the traditional definition of marriage to be invalid and changed the definition to "the voluntary union for life of two persons to the exclusion of all others." (emphasis added)

Then Prime Minister Jean Chrétien announced that the federal government would not appeal the Ontario Court of Appeal ruling. Instead, the Liberal government would introduce new legislation to change the definition of marriage to include same-sex couples. According to the proposed legislation, marriage was to be the lawful union of two persons to the exclusion of all others, and nothing in the legislation would interfere with the freedom of officials of religious groups to refuse to perform marriages that were not in accordance with religious beliefs.

(b) Reference Re Same-Sex Marriage[vii]

The Liberal government referred the new legislation to the Supreme Court of Canada (SCC), asking the Court three questions:

Did the federal government have the authority to change the definition of marriage without the permission of the provinces?
Was the inclusion of same-sex couples within the definition of marriage consistent with the Charter?
Did the freedom of religion guaranteed by the Charter protect religious officials from being compelled to perform a marriage between same-sex couples that was contrary to the religious beliefs of those officials?

In 2004, the Liberal government, led by Paul Martin, added a fourth question to the reference:

Is the traditional definition of marriage consistent with the Charter?

In December 2004, the SCC ruled that the federal government could change the legal definition of marriage without the permission of the provinces. The Court also found that the new definition of marriage did not violate the Charter. This did not mean that the Charter required the new definition, but simply that in legalizing same-sex marriage the government was not violating any constitutional rights under the Charter.

The SCC held that religious institutions could not be forced to perform same-sex marriage ceremonies that went against the tenets of their faith.

The Court exercised its discretion and chose not to answer the fourth question referred to it. The Court held that this issue had already been addressed by provincial lower courts and accepted by the federal government.

Impact of the Judicial Decisions

These judicial decisions had two important impacts on the politics of same-sex marriage in Canada.

First, the ruling by the Ontario Court of Appeal, and the decision of the federal government not to appeal that ruling, effectively broadened section 15 rights to include the right to same-sex marriage.

Second, the ruling by the SCC was important in that it eliminated the provinces from the picture. While many provinces were quick to adopt the new definition of marriage, some provinces protested. Alberta, in particular, indicated it might use the notwithstanding clause to protect the traditional definition of marriage. However, given the Supreme Court of Canada's ruling, it is generally accepted that only the federal government has the authority to make laws relating to marriage. Further, all provinces and territories in Canada must, under the Constitution,[viii] abide by the federal government's decisions in this area.

Marriage for Civil Purposes Act (Bill C-38)
In February 2005, the Liberal government introduced Bill C-38 in the House of Commons. The Act became law on July 20, 2005.

This Act extends the definition of marriage to include same-sex couples. The legal definition of marriage is: "[m]arriage, for civil purposes, is the lawful union of two persons to the exclusion of all others."[ix]

The Act also gives full legal benefits and obligations of marriage to same-sex couples.[x]

Additionally, the Act says that Parliament's commitment to equality rights bars the use of the Charter's notwithstanding clause to deny the right of same-sex marriage.[xi]

Finally, the Act provides for the freedom of religion for churches and religious groups.[xii] It is recognized that officials of religious groups are free to refuse to perform marriages that are not in accordance with the religious views of their respective faiths.

2006 Election of Conservative Government

During the 2006 federal election campaign, then Conservative Leader Stephen Harper indicated he would bring the issue of same-sex marriage back to Parliament for another vote if elected Prime Minister. Should Members of Parliament vote to restore the traditional definition of marriage, then Harper would do so without using the notwithstanding clause.

Many Canadian constitutional law experts believe that the only way Parliament could overturn same-sex marriage is to use the notwithstanding clause, since "any law enshrining the traditional definition would inevitably be found to be discriminatory under the Charter."[xiii] Additionally, if the Conservatives did pass a law banning same-sex marriage without using the notwithstanding clause, the law would have no effect in the provinces and territories where courts struck down the traditional definition of marriage as a violation of the Charter.[xiv]

At present, we have yet to see whether this issue will once again raised in Parliament and how the Conservative government plans on dealing with same-sex marriage.

[i] Marriage for Civil Purposes Act, S.C. 2005, c. 33 .
[ii] The other countries that have legalized same-sex marriage include: the Netherlands, Belgium, and Spain.
[iii] The provinces which struck down the traditional definition of marriage prior to the Supreme Court of Canada ruling were: Ontario, British Columbia, Quebec, Manitoba, Nova Scotia, Saskatchewan, Newfoundland, and New Brunswick.
[iv] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to theCanada Act 1982 (U.K.), 1982, c.11.
[v] CBC Indepth: Same Sex Rights.
[vi] Halpern v. Canada (Attorney General) (2003), 65 O.R. (3d) 161 (C.A.).
[vii] Reference Re Same-Sex Marriage, [2004] 3 S.C.R. 698.
[viii] Constitution Act, 1982, s.52, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
[ix] Marriage Act, supra note 1 at s. 2.
[x] Ibid. at ss. 5-15.
[xi] Ibid. at preamble.
[xii] Ibid. at s. 3.
[xiii] Michael Den Tandt & Campbell Clark "Harper stirs up more debate on same-sex" The Globe and Mail(17 December 2005), online. CBC: Indepth: Same-Sex Rights, online..
[xiv] Ibid.