A major constitutional showdown is now before the Supreme Court of Canada, and at its core is a simple question of who decides?

Constitutional interpretation is not a straightforward exercise. Rights are stated at a high level of generality, as they must be, and don’t contain detailed instructions for their application. They must be interpreted and operationalized in the real world, and balanced in relation to other rights and other public policy objectives. Courts are not uniquely equipped to perform this task, nor were they ever meant to monopolize it. In our parliamentary democracy, legislatures have an essential role to play in that process, and that is what section 33 is for – a necessary condition of patriation and part of the constitutional design where coordinate interpretation can occur in a back and forth between courts and legislatures.

The federal government has intervened in these cases to argue contrary to the clear textual basis of the Constitution that repeated invocation of the clause “irreparably impairs” a rights. Though the clause clearly prohibits the policing of its use beyond correctness of application, they argue courts should in fact be able to assess whether legislatures have used it too much.

Ottawa has also argued that courts should be able to issue declarations that laws are unconstitutional even where section 33 prevents them from being struck down. A constitutional press release, if you will. Formally toothless, but plainly political in purpose and effect. And given the Court’s decision in Power, which contemplates retroactive damages for laws later found to be unconstitutional, this sort of declaratory power could become a backdoor route to financial liability as well. Given all the innovations the courts have been prone to, one would not put this past them. 

Other interveners opposed to the use of the notwithstanding clause have, in typical fashion, invited creative readings of the constitutional text, suggesting that section 28’s sex equality provision, or section 96’s protection of superior court jurisdiction, can be used to blunt or bypass section 33. The clearer reading is that neither does so. 28 has never been interpreted as more than a way of ensuring equal enjoyment of rights, and 96 preserves the ability of courts to hear cases and interpret the constitution, which they already do when assessing the correctness of s. 33’s invocation, but not its merit.

The federal government under the Liberal party and activist interveners are doing what they have done for decades, which is to advance a loose and expansive philosophy of judicial interpretation to constitutionalize contested social policy from the bench, bypassing the legislature in the process.

These cases cut at the core of Canada’s legal system, and whether it is one that remains a parliamentary democracy with judicial review, or continues drifting toward judicial supremacy under a philosophy of loose and expansive constitutional interpretation.

I had an excellent discussion on all of this with François Côté, one of the intervenors from Droits collectifs Québec, Xavier Foccroulle Ménard, and Yuan Yi Z. of Macdonald-Laurier Institute‘s Judicial Foundations Project.