More on the Notwithstanding Clause and Administrative Law
In a previous post, I addressed the relationship between the notwithstanding clause and administrative law. Here I address a number of other relevant issues: the role of Charter values; the principles of judicial review of administrative action; and the relationship between legislation passed notwithstanding Charter rights and existing statutory schemes.
So much for the compliance of legislation and exercises of discretion with Charter rights. What about Charter values? As I have argued, administrative decision-makers are under an obligation to consider Charter values, separately from and independent of their obligation to make decisions that are consistent with Charter rights. In my view, subject to the qualifications I have made about accountability and legislative intent, the invocation of the notwithstanding clause prevents administrative decision-makers from considering Charter values. As above, it would be decidedly odd for legislation made notwithstanding Charter rights to be applied by reference to Charter values. Moreover, given that Charter values have less normative force than Charter rights, it would make little sense if legislatures were able to exclude remedies for breach of Charter rights but unable to exclude consideration of Charter values. There is no hierarchy of Charter rights but their existence as textually enshrined and entrenched constitutional provisions does give them hierarchical superiority over Charter values. It would be strange, therefore, to require a legislature invoking the notwithstanding clause to also specify in a discrete provision that Charter values may not be considered either.
That being so, I am inclined to say that the notwithstanding clause excludes consideration of Charter values as well as Charter rights. And so the manoeuvre of the Quebec Court of Appeal in Paquin c. Lapointe, 2023 QCCA 1129, at para. 85 – even though s. 11 of the Charter is not engaged in disciplinary matters, its underlying values can influence the interpretation given to disciplinary legislation – would not be open when the notwithstanding clause has been invoked.
However, this will be a question of interpretation in all instances.
In Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43 the question was whether the B.C. Utilities Commission could consider whether the province had adequately discharged its constitutional duty to consult with First Nations. The Court held that the Commission had a general power to consider questions of law and, thus, constitutional questions. It then drilled down into the provision of the B.C. Administrative Tribunals Act that sought to remove the Commission’s power to consider constitutional questions (s. 44, as further defined by s. 1 and a related statute). Taking a close look at the terms of the relevant statutory provisions, the Court concluded that only challenges to the constitutional validity or constitutional applicability of a law, or an application for a constitutional remedy, were precluded. The Court accepted that, in broad terms, the challenge was constitutional in nature, but that the statutory provisions did not indicate a clear intention on the part of the legislature to exclude from the Commission’s jurisdiction the duty to consider whether the Crown has discharged its duty to consult with holders of relevant Aboriginal interests (at para. 72). In subsequent BC cases, it has also been held that human rights tribunals that may not consider questions of constitutionality must nonetheless consider Charter values in interpreting the concept of discrimination: Ismail v. British Columbia (Human Rights Tribunal), 2013 BCSC 1079, at para. 309; Duncan v Retail Wholesale Union Pension Plan, 2017 BCSC 2375, at para. 86.
However, this line of argument runs into difficulty when faced with a more comprehensive legislative attempt to oust Charter jurisdiction. Consider United Food and Commercial Workers, Local 401 v Alberta (Attorney General), 2012 ABCA 130. Here, the question was whether an adjudicator appointed by the Information and Privacy Commissioner had acted reasonably in determining that a union could not collect and use video recordings of individuals crossing a picket line. The adjudicator never considered the effect of its decision on Charter rights, because of s. 11 of the Administrative Procedures and Jurisdiction Act, a general ouster of Charter jurisdiction that can only be reversed by the provincial cabinet. The ouster provisions are very broadly drawn and apply to questions of constitutionality and “a determination of any right under the Constitution of Canada or the Alberta Bill of Rights”. It was thus “beyond the mandate” of the adjudicator to “engage” Charter issues (at para. 44). Now, the Court of Appeal could have said (and indeed might have said: para. 42) that consideration of Charter values is not the same as making a “determination” of a Charter “right” and, as a result, that s. 11 should be read only to apply to “rights” and not to “values”. Where, however, the notwithstanding clause has been invoked in respect of a statutory scheme, it would be difficult to justify a “rights”/“values” distinction: the most natural reading of the statutory scheme would be that consideration of both Charter rights and Charter values is ruled out. Charter values would therefore be “beyond the mandate” of an administrative decision-maker. Again, this is subject to the qualifications about legislative intent and accountability noted earlier: where the notwithstanding clause is used in, say, an omnibus statute, there would be greater scope for Charter values to play an interpretive role.
In Doré, at para. 35, the Supreme Court of Canada noted that administrative decision-makers must always consider “fundamental values” (see also UFCW, Local 401 at para. 42). This point has not been further developed in the jurisprudence and I will return to it below. I take “fundamental values” to mean something different from“Charter values”. In general, however, my view is that invoking the notwithstanding clause will prevent administrative decision-makers exercising powers under a statute passed notwithstanding Charter rights from considering Charter values.
- The Availability of Judicial Review
My argument so far has been that the invocation of the notwithstanding clause will generally knock out sections 24 and 52. But it does not knock out administrative law.
Section 96 of the Constitution Act, 1867 — which cannot be overridden by the notwithstanding clause — protects the core competencies of the superior courts. It is uncontroversial that judicial review forms part of the core. Legislation ousting judicial review is unconstitutional, as it violates s. 96: Crevier v. A.G. (Quebec),  2 SCR 220. If, therefore, legislation passed pursuant to the notwithstanding clause were to immunize any state action from judicial review, the legislation would be an unconstitutional interference with a core judicial competence, breaching s. 96. Accordingly, recourse to the notwithstanding clause cannot oust judicial review of administrative action.
The question then becomes one of identifying the content of judicial review. Unless a statutory appeal has been provided for in the legislation at issue, the reasonableness standard will apply. In order to make a reasonable decision, a decision-maker must justify its conclusions in view of the legal and factual constraints. Consistent with my analysis above, the Charter will generally not be a relevant constraint (for a decision-maker and, by extension for a reviewing court) when the notwithstanding clause has been invoked, nor will the decision-maker be obliged to grapple with Charter values. But there may be other Charter-adjacent principles or values that are relevant. Recall that s. 26 of the Constitution Act states that “The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada”. There is also a significant body of pre-Charter jurisprudence – sometimes described as the ‘implied bill of rights cases’ – in which fundamental values were held to limit the scope of administrative decision-makers’ authority (see e.g. Smith & Rhuland Ltd. v. Nova Scotia,  2 SCR 95).
In Boucher, traces of this reasoning appear.Hugessen J was particularly concerned that ss. 11(a) and 11(b) could only be violated by individuals duly authorized by legislation to do so. These rights are not rights that a legislature will typically violate, rather, the legislature will have to authorize others to do so on its behalf: “Une telle permission, toutefois ne se présume pas” (at para. 11). He looked for express legislative authorization to delay three years before putting an accused on notice of an offence but, of course, found none (at para. 10).
The principles that laws should not be retroactive, that penal provisions should be construed in favour of an accused, that vested property rights should not be removed and that police powers are not unlimited could all be relevant constraints for the purposes of reasonableness review. The same would be true of unwritten constitutional principles, such as federalism and protection of minority language communities, where these could be concretized in a decision-making process. Principles drawn from international treaties may, where relevant, influence the exercise of discretion and the interpretation of legislation. In the context of the open-textured language of Bill 21, international law provisions relating to the right to work or earn a livelihood, or the unwritten constitutional principle of the protection of minorities could conceivably be used to read down the broad language of section 6. There are, in short, in the common law tradition, a variety of principles that protect constitutional fundamentals and which would not be excluded by invocation of the notwithstanding clause. These are the “fundamental values” referred to by the Supreme Court in Doré. The practical effect of excluding consideration of Charter values may, therefore, be somewhat limited.
- The Relationship between the Notwithstanding Clause and Existing Statutory Schemes
Lastly, questions may arise about the relationship between legislation passed notwithstanding Charter rights and related statutory schemes. There is no guarantee that invocation of the notwithstanding clause will necessarily deliver the policy result desired by the legislature in question. This was the fate of back-to-work legislation passed by the Ontario legislature in 2022. Striking workers were forced back on the job by legislation imposing a collective agreement. As the legislation would almost certainly have violated the workers’ freedom of association, the legislature invoked the notwithstanding clause. Then, however, the workers declared that they would defy the legislation and continue to strike. At that point, the government moved before the Ontario Labour Relations Board to have the strike declared illegal. The workers objected, on the basis that the Board only had jurisdiction to make a declaration in respect of an “unlawful strike”. However, the conditions resulting from the back-to-work legislation did not mean there was an “unlawful strike”, because a collective agreement had been imposed rather than bargained for under the comprehensive provisions of the Labour Relations Act, 1995, SO 1995, c 1, Sch A; the usual remedies available before the Board were, therefore, off the table.
As it happened, the back-to-work legislation was repealed under political pressure and the Board never made a decision on the workers’ jurisdictional objection. The incident poses, nonetheless, important questions about the relationship between the notwithstanding clause and an existing statutory scheme. The back-to-work legislation was passed notwithstanding the right to freedom of association, but the existing statutory scheme was subject to the full battery of Charter rights. Should it be read as incorporating, or facilitating, the use of the notwithstanding clause? The accountability and legislative intent qualifications outlined above suggest not: the Board could have upheld the workers’ objection on the basis that a collective agreement imposed notwithstanding the right to freedom of association is not a collective agreement within the meaning of a statutory scheme that must be interpreted to comply with the Charter.
Now, the success of this argument would perhaps have led to the unpalatable conclusion that the workers’ defiance of enacted law redounded to their benefit. Equally, however, it is hardly the workers’ fault that the legislature botched its job or failed to fully consider the consequences of invoking the notwithstanding clause. The lesson, in any event, is that when considering resort to the notwithstanding clause, careful consideration should be given to the practicalities of implementation. Of course, if a legislature invokes the notwithstanding clause in a self-contained statute, implementation is less likely to be problematic.
Indeed, if there is one constant theme running through my analysis, it is that the notwithstanding clause will be most effective if used in a carefully tailored way, inserted into a statutory scheme that aims to address a discrete policy issue. Where the notwithstanding clause is invoked prophylactically , to forestall a potential future challenge rather than to respond to an adverse court judgement, the risks of implementation difficulties are heightened.
Comments are particularly welcome on this and the previous post!
This content has been updated on September 27, 2023 at 10:38.