“Resistance is futile” was the stated message of Star Trek’s Borg collective when it encountered another civilization. The words conveyed a sense of the Borg’s victorious efforts to either destroy or assimilate into the collective any sentient life it encountered. The repetition of the phrase struck fear into the hearts and minds of opposition lifeforms made aware the Borg were approaching.
The resistance is futile position is also assumed by opposing sides in a debate, largely semantic, about whether Canada is a constitutional democracy (sometimes styled a constitutional monarchy), in which the constitution rules supreme, or a parliamentary democracy, in which Parliament has the final word.
In recent weeks the question as to whether Parliament or the constitution is supreme has been answered in differing ways by the Supreme Court of Canada and by the Canadian Parliament itself.
Constitutionally, it was not until the Canadian Charter of Rights and Freedoms (the Charter) was added by an amendment to Canada’s constitution in 1982 that the Supreme Court of Canada positioned itself to assume authority over the decisions of Canadian legislatures. Prior to 17 April 1982, consideration of legislative actions by the Court was most often limited to assessing whether legislation had been appropriately enacted under federal or provincial jurisdiction, based on the categories stated in the British North America Act (now known as the Constitution Act, 1867) and its pre-1982 amendments.
In those almost forgotten days, the Supreme Court also recognized and set the standard of precedent for decisions of the common law and civil law courts of Canada, reinforcing legal stability. But it was Supreme in name as the highest court in the land and not considered by anyone to be the nation’s highest recognized authority, constitutional or otherwise. While the Court now routinely comments on social policy or public opinion and shapes its decisions accordingly, in the time before the Charter such consideration was the purview of the elected legislatures or parliaments, provincial and federal.
The Supreme Court appropriated its new ‘higher’ power under the Charter at a time when Canadians were pushing back from long held confidence in religious and political institutions. I summarized the result in earlier writing:
Canadians, whether they have read it or not, increasingly place their faith in the Charter. To do so is to also place one’s hope in the institution that interprets it, just as the priests of old used to interpret the Bible for the people, the Book not being available in the common language of the day.
Today, Canadians routinely look to the courts to protect us, both from actions of our neighbours and from acts of Parliament, provincial legislatures and municipal councils. The Charter does not apply in disputes with our neighbours. It does apply between citizens and our various levels of government, all of which have publicly accountable elected representatives. Although elected government bodies routinely defer to decisions of the courts, that’s not mandatory in how our constitution is designed. That oft disregarded constitutional reality is something the Supreme Court of Canada quietly acknowledged on 9 April. No fanfare. No media coverage. Few noticed.
On 9 April, the Supreme Court of Canada dismissed an application for appeal in the case styled Ichrak Nourel Hak, National Council of Canadian Muslims and Corporation of the Canadian Civil Liberties Association v. Attorney General of Québec. The sought after appeal was from a procedural decision of the Quebec courts in the first case brought to challenge the Act respecting the laicity of the State enacted by Quebec’s National Assembly on 16 June 2019, an Act better known to most as Bill 21. Hak and the others were seeking to stay (an order to put the legislation on hold) the Quebec legislation until their full case might be presented and heard in court as a challenge to the Act’s constitutionality.
The legislation, however, pre-emptively invoked section 33 of the Charter, known as the ‘notwithstanding clause,’ which reads:
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.
Section 2 of the Charter states Canadians’ fundamental freedoms. Sections 7 to 15 outline our legal and equality rights. The Quebec Court of Appeal also considered section 28 of the Charter, which is not included in the scope of section 33. Section 28 guarantees equal application of rights and freedoms to “male and female persons.”
In dismissing the appeal, the Supreme Court of Canada effectively deferred to the majority decision of the Quebec Court of Appeal (CA). Assessing the use of section 33, the Quebec CA noted, at least in regard to the application for a stay, “it is not for the courts to interfere in the legislature’s choice to define the public interest as it sees fit.”
The CA was cautious to limit the decision to the application before it that was seeking the interim order of a stay, noting a full constitutional challenge to the law is still to be heard. The court opted to accept the law as constitutional, at least until such time as the fully presented and argued challenge to the law is decided. In declining the stay the judges determined that irreparable harm would not likely result from enforcing the law before such a challenge concluded. The CA stated:
This is not a matter of endorsing the Act respecting the laicity of the State, nor should the dismissal of the appeal be confused with any opinion on the part of the Court for or against this Act, which has inflamed passions on both sides. The opinion of the judge [who heard the initial application] as a citizen does not form part of the legal debate. Rather, the exercise here consists in adjudicating whether or not to suspend the Act based on the applicable legal framework.
The decision of the Supreme Court of Canada to not hear the appeal means the decision of the Quebec CA stands as final.
On one hand, the result is disappointing because there is no question about the compromise of constitutionally guaranteed freedoms under the legislation, which will likely cause harm although, in the court’s opinion, not irreparable harm. On the other hand, the decision is heartening because the importance of respecting the supremacy of legislatures – provincial and federal – within Canadian democracy has been affirmed.
The acceptance of this non-emergency-related pre-emptive use of section 33 is troubling, in that any legislature might consider the use of the notwithstanding clause in a way that might block the courts from effectively exercising their role to protect citizen’s rights against unnecessary intrusion by government. This concern is mitigated somewhat by consideration that the legal context is a decision about the request for a stay. Historically, Canadian courts have given the benefit of the doubt to government on requests to stay legislation, unless evidence of irreparable harm or the potential for irreparable harm is presented to and accepted by the court.
This recognition of the supremacy of Canada’s elected governors by Quebec’s superior court, court of appeal and the Supreme Court of Canada leads to my second point.
It is of great concern in our democracy when the authority of legislatures or Parliament to suitably and fully assess and define the public interest in governance is compromised. It is a concern at any time, and most particularly in a time of recognized emergency. When a parliament is not sitting or able to sit, its authority is effectively abandoned into the hands of the government of the day without constitutional or parliamentary accountability. The people are then no longer properly represented in our democracy – whether one considers it a constitutional democracy or a parliamentary democracy.
In Canada, the right to representation can be traced back to Magna Carta in the twelfth century, and aboriginal councils likely before that. The one form of governance was recognized peacefully (but not without prior rebellion, a story for another day) in the British North America Act (Constitution Act, 1867). The second form was more belatedly given recognition in the Constitution Act, 1982.
In the thirteenth century, Magna Carta introduced a fledgling form of parliament and constrained the capacity of any one person, the reigning monarch, to tax, spend or make new laws.
The intent of representative democracy is summarized in these words from my book Church in Society: First-Century Citizenship Lessons for Twenty-First Century Christians:
Politics, whether in church leadership or national governance, is supposed to be about people. Serving the people. Looking out for the best interests of all constituents. But too often it’s more about power than governance. Part of our sinful nature is the desire to be the greatest by having dominance over others rather than by serving them
Which leads us to consideration of thoughts on England’s Rump Parliament of 1648 and observations on Canada’s Rump Parliament of 2020.
A lawyer friend, and former MP, was the first person (but not the last) I heard refer to Canada’s current situation as a Rump Parliament, a parliament neutered by the agreement to function as Committee of the Whole for discussion of Covid-19 measures only, with a quorum of seven members, which is one-third the constitutional twenty required as quorum for the House of Commons. The Senate stands adjourned until the House returns. Parliament is not sitting, except at the call of Government to pass legislation required to spend money already promised to Canadians by the Prime Minister in his Covid-19 initiated morning press conferences.
We will turn our minds to that tomorrow in part two.