Notwithstanding Administrative Law?
The ‘notwithstanding’ clause of the Constitution of Canada (contained in s. 33 of the Constitution Act, 1982) provides as follows:
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.
(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.
(3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.
(4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1).
(5) Subsection (3) applies in respect of a re-enactment made under subsection (4).
The conventional view is that legislation enacted in accordance with s. 33 is immune from judicial review. The Supreme Court of Canada confirmed this in Ford v. Quebec (Attorney General),  2 SCR 712, where it also made clear that a legislature may invoke the notwithstanding clause proactively, without waiting for a court to conclude that a particular provision violates Charter rights. Even on the more sophisticated view offered by Professor Webber and others, a court can declare that provisions of the legislation are inconsistent with the Charter but cannot prevent the legislation from operating. One difficult issue which has not been much discussed, however, is whether administrative action taken under legislation made notwithstanding its inconsistency with the Charter is also protected from judicial review, and to what extent.
The general issue of the relationship between judicial review and the notwithstanding clause has been considered only in two cases as far as I know, both decisions of the Quebec superior court in which, interestingly, the judges came to different conclusions. (I thank Professors Noura Karazivan and Han-Ru Zhou for alerting me to these decisions.)
The text of s. 33 expressly targets the “operation” of an Act or a provision of an act. This does not map nearly onto the way Canadian lawyers think about the distinction between the constitutionality of statutory provisions and the lawfulness of administrative action.
The fundamental distinction usually made is between two situations, one in which a Charter breach is attributable to legislation (and the legislation can be challenged for unconstitutionality), one in which a Charter breach is attributable to administrative action. Lamer J (as he then was) set out the two situations in Slaight Communications Inc. v. Davidson,  1 SCR 1038:
1.The disputed order was made pursuant to legislation which confers, either expressly or by necessary implication, the power to infringe a protected right.
–It is then necessary to subject the legislation to the test set out in s. 1 by ascertaining whether it constitutes a reasonable limit that can be demonstrably justified in a free and democratic society.
2.The legislation pursuant to which the administrative tribunal made the disputed order confers an imprecise discretion and does not confer, either expressly or by necessary implication, the power to limit the rights guaranteed by the Charter.
–It is then necessary to subject the order made to the test set out in s. 1 by ascertaining whether it constitutes a reasonable limit that can be demonstrably justified in a free and democratic society;
–if it is not thus justified, the administrative tribunal has necessarily exceeded its jurisdiction;
–if it is thus justified, on the other hand, then the administrative tribunal has acted within its jurisdiction.
I discussed this point when commenting on Brown v. Canada (Citizenship and Immigration), 2020 FCA 130. As Rennie JA put it in Brown, “[a] statutory grant of discretionary power should be read to require that it be exercised in a constitutional way, unless the statutory power itself impliedly or expressly authorizes infringement of the Charter, in which case the statutory grant itself may be subject to Charter challenge” (at para. 78).
Following Slaight Communications and Brown, the notwithstanding clause saves a statutory power which “impliedly or expressly authorizes” a Charter infringement because the statute in question can no longer be “subject to Charter challenge”. This is undoubtedly part of the “operation” of the statute.
In my view, the “operation” of the statute will generally also include discretionary decisions taken under statutory authority. This is because the distinction between “law” and “discretion” in Slaight Communications and Brown maps onto the two types of constitutional remedy available for Charter breaches. As Rennie JA explained in Brown, “the recourse against an improper exercise of discretion … is an application to quash that exercise of discretion under administrative law principles and section 24 of the Charter, not to strike down the section under section 52 of the Constitution Act, 1982” (at para. 23).
Notice that where a Charter breach has resulted from the exercise of discretion under a statute, the available constitutional remedy is provided by s24. (By discretion, here, I include any decision that requires an “individualized assessment” by the decision-maker.) Where discretion is being exercised, a decision-maker has a “choice” between alternative courses of action. In this scenario, the “choice” is between violating specified sections of the Charter and not violating the specified sections. Normally, if a Charter-violative “choice” is made, s24 provides the basis for a remedy. In my view, recourse to s24 is generally precluded where the notwithstanding clause has been invoked. (As my use of “generally” indicates, a qualification will — eventually — come.)
First, it would be decidedly odd for a decision-maker making discretionary decisions under a statute protected from review by the notwithstanding clause to be obliged to choose a Charter compliant option on all occasions. The “operation” of the statute would typically be compromised if all discretionary decisions had to be Charter compliant. A legislature having made the considered choice to opt out of the Charter, it would be strange for decision-makers to be compelled to opt back in.
Second, it is well established that legislatures may restrict access to s24. For one thing, administrative decision-makers can only grant s24 remedies where doing so would be consistent with their statutory mandate. This also means that legislation can oust an administrative decision-maker’s ability to grant a Charter remedy. The notwithstanding clause seems comparable to statutory language (express or implied) limiting the ability to grant remedies under s24. It would be decidedly formalistic to require a legislature to both invoke the notwithstanding clause and separately provide that an administrative decision-maker cannot remedy breaches of the Charter. For another thing, there is some support for the view that legislatures can prevent courts from granting Charter remedies. This is not my view but it provides further support for the proposition that legislation may restrict access to s24. Again, given that preventing review on Charter grounds is the raison d’être of the notwithstanding clause, invoking the clause is good evidence that the legislature intended Charter remedies to be off the table.
A concrete example may be helpful. Section 6 of Quebec’s Bill 21 prohibits the wearing of a “religious symbol”, which is defined as an object “worn in connection with a religious conviction or belief”, or “is reasonably considered as referring to a religious affiliation”. This provision is shot through with open texture; it contains broad language that has to be operationalized by the making of individualized assessments in different cases (to be made by the “highest authority” in the relevant public institution: s. 13). But I struggle to see how it would be consistent with the evident intention to exclude Charter compliance for those individualized assessments to involve consideration of freedom of religion and equality, as the legislation was specifically passed notwithstanding those Charter rights.
In short, my view is that where the notwithstanding clause has been invoked, the clause shelters discretionary decisions made under the legislation from Charter challenge.
This conclusion is supported by the analysis of the Quebec Superior Court in Barreau du Québec v. Maroist,  CS 438. M challenged on Charter grounds a regulation of the provincial law society that limited his ability to advertise legal services. The regulation was grounded in legislation according regulatory powers to the law society and legislation providing the law society and similar organizations the authority to establish a disciplinary code. Importantly, in both pieces of legislation, the notwithstanding clause had been invoked. In addition, the regulation had been approved by the provincial cabinet.
M argued, however, that the regulation was not “law” within the meaning of s. 33; it was administrative action and therefore not covered by the notwithstanding clause. Larouche J rejected this argument because, based on prior jurisprudence, “law” included regulations where these had been approved by cabinet:
Il nous apparaît donc des décisions ci-dessus que le mot “loi” comprend des dispositions règlementaires lorsque ces dernières sont assujetties à l’approbation du gouvernement. Les règlements du Barreau du Québec contenus dans le Code de déontologie et concernant la publicité des avocats en particulier ont dûment été approuvés par le Lieutenant-gouverneur en conseil et en conséquence ils sont assimilables à des mesures édictées par le Gouvernement. Ils doivent donc … être considérés comme une extension du pouvoir législatif de la Législature et être considérés comme des actes de ladite Législature au même titre qu’une loi (at paras. 49-50).
It is debatable whether government approval was a necessary element for Larouche J’s analysis. The focus of the argument on whether the regulation was “law” is, to my eye, a red herring. M was essentially arguing that the notwithstanding clause would have to be invoked in all regulations made under statutory authority in order to gain the protection of s. 33. It should be enough that the clause was invoked in the empowering legislation, as the same legislation envisages that its “operation” will include the making of regulations.
Now, I have thrown a few “generallys” and “typicallys” into the discussion above. There are a couple of objections that could be made to my analysis, one about accountability, one about legislative intent. In response to these objections, I will offer a qualification to my analysis above.
In terms of accountability, one of the reasons for requiring a legislature to expressly invoke the notwithstanding clause (and to renew it at five-year intervals) is to ensure that the legislature faces the political cost of its decisions. But if a legislature invokes the notwithstanding clause and delegates vast discretionary power to an administrative decision-maker, it may be able to avoid the Charter-breaching implications of its legislation. No political price is exacted in respect of administrative decisions: they are not debated in the legislature or authorized after a rigorous parliamentary process. These Charter violations take place in the dark, as it were, far away from the glare of legislative scrutiny. This would undermine the accountability function of s33.
In terms of legislative intent, I have mostly assumed that it will be clear that by invoking the notwithstanding clause a legislature intended to eliminate judicial review for Charter compliance in all of a statute’s fields of operation. But it may not always be so. When a statute deals with a small area of regulation, it will not be difficult to conclude that the legislature intended the statute to “operate” free of Charter constraints: the intention of back-to-work laws, or even Bill 21’s prohibition on religious symbols in the Quebec public service, would be frustrated by judicial review of discretionary decisions on Charter grounds. Here, the statutes aim to achieve a particular policy goal and the notwithstanding clause is contained within the same statute, supporting the inference that the legislature intended that Charter review not impede achievement of its goal. But as with accountability, where legislation covers vast territory and/or delegates enormously broad discretion, the link to a legislative intent that the statute operate in a Charter-free zone will be harder to make.
Precisely this problem occurred in Quebec. In the 1980s, Quebec passed an omnibus law providing that all other statutes passed by the legislature were passed notwithstanding the derogable rights of the Charter. Did this mean that the omnibus statute could “operate” in all respects outside the shadow of the Charter? The issue arose in Montréal (Ville) v. Boucher, J.E. 86-308. B was accused of breaking a red light, contrary to a municipal regulation. A summons was issued in 1979 but not served on B until 1982, three and a half years later. As a defence, B raised the rights guaranteed by the Charter to notice of a criminal accusation without delay (s. 11(a)) and a trial within a reasonable period of time (s. 11(b)). Standing in B’s way was omnibus legislation that invoked the notwithstanding clause in respect of all Quebec legislation. Hugessen J thought that the invocation of the clause was ineffective, because the clause could only be invoked where legislation actually breached the Charter. Here, however, the omnibus legislation applied to all legislation regardless of whether it contained a Charter breach. For him, this was a legislative nonsense (at para. 9). Given the radical effect of invoking the notwithstanding clause, it had to be interpreted narrowly, and not so as to cast a cloak of immunity over a vast range of governmental action (at para. 12).
Now, Hugessen J’s analysis of the legal effectiveness of an omnibus use of the notwithstanding clause is no longer good law. In Ford, the Supreme Court of Canada held that “a s. 33 declaration is sufficiently express if it refers to the number of the section, subsection or paragraph of the Charter which contains the provision or provisions to be overridden” (at para. 33) and that an omnibus proactive use of the notwithstanding clause “an effective exercise of legislative authority that did not prevent the override declaration so enacted in each statute from being an express declaration within the meaning of s. 33” (at para. 35).
Nonetheless, the Supreme Court did not consider in Ford whether this ‘effective use of legislative authority’ also covers administrative action taken under legislation expressed to be made notwithstanding Charter rights.I find this to be a genuinely difficult issue but I think on balance Hugessen J came to the right conclusion. Unlike in Maroist, where the notwithstanding provisions put directly in the empowering legislation,Quebec never had to face up to the consequences of eliminating Charter protections for persons accused of municipal violations. Nor is it clear that the omnibus legislation was intended to “operate” in a remote field of municipal law, where prosecutors exercise discretion about whom to charge and when. The accountability and legislative intent arguments developed above do not map onto the facts of this particular case.
That said, I expect that such instances will be rare. The contemporary approach to the notwithstanding clause has been to invoke it in the same statute that would be the subject of Charter review. Nonetheless, like Hugessen J, I think there are some situations in which the notwithstanding clause might not shelter Charter breaches caused by exercises of discretion in a far-off field of regulation not contemplated by the invocation of the notwithstanding clause. In such situations (which I think would only arise in respect of omnibus, prophylactic uses of the notwithstanding clause), the statute itself could not be challenged but discretion under the statute could be.
In a future post I will discuss the prospects for Charter values and common law principles in the operation of a statute passed notwithstanding the Charter.
This content has been updated on September 18, 2023 at 22:47.