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June 22, 2022
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Understanding Notwithstanding

Margaret Somerville

In the Sue Rodriguez case Chief Justice Lamer (as he then was) of the Supreme Court of Canada explained the limitations on the scope of the court's decision making in relation to discrimination under section 15 of the Charter in the following way:

Can the right to choose at issue here, that is the right to choose suicide, be described as an advantage of which the appellant is being deprived? In my opinion, the Court should answer this question without reference to the philosophical and theological considerations fuelling the debate on the morality of suicide or euthanasia. It should consider the question before it from a legal perspective -- Tremblay v. Daigle , [1989] 2 S.C.R. 530 -- while keeping in mind that the Charter has established the essentially secular nature of Canadian society and the central place of freedom of conscience in the operation of our institutions .” [1993] 3S.C.R. 519, 553 (emphasis added).

Now replace the words suicide and euthanasia in this quotation with the term same-sex marriage. In doing that it is easy to see that the courts have ruled on the issue of same-sex marriage from only a legal perspective. And there is nothing wrong in that, indeed it's required. As the Chief Justice says, the role of the courts is limited to applying the law. But, while a valid and necessary perspective, it is not a sufficient base for the larger debate about same-sex marriage that should take place. Cardinal Aloysius Ambrozic, in an open letter, rightly summarizes the situation, “So far, the [official public] debate has been among lawyers. It is time for there to be a debate in Canadian society as a whole”.

The responsibility to factor in other important considerations lies outside the courts, in particular, with Parliament.

One mechanism for factoring in broader social concerns is to allow a conscience or free vote on legislation in Parliament. This was done on proposed amendments to the Criminal Code provision on abortion following the Morgentaler case in which the Supreme Court of Canada struck down the section governing abortion as contravening a woman's constitutional right to security of the person under the Charter. But, even that opening up of the debate will not be fully allowed. The Prime Minister has given contradictory messages in that at different times he has said that the vote on same-sex marriage will not be a free one and that it will be and, most recently, that it will be free for backbenchers, but not members of cabinet.

The Charter's section 33 “notwithstanding clause” is another mechanism through which Parliament can fulfill its responsibility to factor in broader social concerns. Just as section 1 of the Charter allows courts to declare that legislation that limits Charter rights is valid if it is such “as can be demonstrably justified in a free and democratic society”, section 33 allows Parliament to legislate that a law will operate notwithstanding a provision in the Charter. Under standard rules of statutory interpretation against redundancy in the provisions of any given piece of legislation, sections 1 and 33 must cover different ground. Consequently, it is arguable that the precise purpose of the “notwithstanding” clause is to ensure that broader considerations than those to which courts are restricted in making their decisions can be taken into account by Parliament in making its decision. The more open-ended wording of section 33 in comparison with section 1 is consistent with such an interpretation and means Parliament can conclude differently from the courts as to the valid limits that may be placed on Charter rights.

Yet Justice Minister Cotler refuses to even consider using the “notwithstanding” clause, stating adamantly that “Rights are rights are rights”, and characterizes its use as being nothing more than “an acknowledgment by the government that it is violating rights”. If that were true, it is understandable that no government would ever want to touch it; indeed, it is astonishing that it would be included in a Charter of Rights. Were Minister Cotler taking the position he does as a lawyer defending same-sex marriage, it would be acceptable, in fact to be expected, or as a judge, as explained, required; but to take it as a politician is not. Important as individual rights are, and accepting that we should all work from a basic presumption that they should be respected, they are not the only valid or necessary consideration in many situations, including for Parliament in relation to deciding about same-sex marriage.

But even if we accept that “rights are rights are rights”, there is a question as to what that means. It certainly means, as all Canadians should agree, that people have legal rights not to be discriminated against on the basis of their sexual orientation. But what constitutes such discrimination is a further question. That is where Canadians disagree with respect to excluding same-sex couples from marriage. The courts, so far, have held that that is legally actionable discrimination. But we will find out in the next few weeks, when Parliament votes on the same-sex marriage legislation, whether it agrees – surely we can assume that no MP would vote against legislation including same-sex couples in marriage if he or she thought that to do so was wrongful discrimination. And, if Parliament does not agree with the courts, the question arises of using the “notwithstanding” clause to implement its decision. Here again we don't agree, this time not only as to whether or not it would be necessary to use that clause, but also, on what is the nature of its use.

There are two ways to view the use of the “notwithstanding” clause. In the context of same-sex marriage, its use can be taken to affirm, as the Prime Minister and Justice Minister keep stating, that rights against discrimination on the basis of sexual orientation are being deliberately breached by Parliament. Alternatively, it can be taken as a statement that Parliament does not agree with the courts' determination that restricting marriage to opposite-sex couples constitutes such discrimination. While it is extremely important for the courts to protect minority rights, must we necessarily conclude that judges are always right about what constitutes discrimination and MPs who would use the “notwithstanding” clause to override the judges' decisions always wrong? Might the “notwithstanding” clause have been intended to allow for decision-making about such complex social, cultural, religious issues as marriage, from a much broader base than just the legal one to which judges are restricted? And while democracy is only as ethical as the people who vote and the people they vote in as their representatives, a majority vote against same-sex marriage among 301 elected parliamentarians, especially in light of the fact that no judgment on a same-sex marriage case has been rendered by the Supreme Court of Canada, would, at the very least, require serious reconsideration of leaving in place the present case law “status quo” on same-sex marriage.

Moreover, even the legal rights issues raised by same-sex marriage may not have been fully canvassed in the court cases and need broader discussion. Do children have a right to know who their biological mother and father are and, unless an exception is clearly justified as being in the best interests of a particular child, to be reared by their biological parents? Opposite-sex marriage establishes, as the societal norm, that children have such a claim and, arguably, a right in that respect. Same-sex marriage negates any such claim or right. Children were not parties in the same-sex marriage cases. Courts must only take into account the issues in the case before them – declaratory or hypothetical judgments are not, outside exceptional circumstances, allowed. We need structured public discussion of such broader social-ethical issues.

It is instructive to turn again to Chief Justice Lamer's judgment in the Rodriguez case. He quotes Justice Proudfoot of the Court of Appeal of British Columbia in that case as follows:

In …[Justice Proudfoot's] view, leaving aside the legal and procedural aspects, the broad religious, ethical, moral and social issues implicit in the merits of this case are not suited to resolution by a court on affidavit evidence at the instance of a single individual. On the material available to us, we are in no position to assess the consensus in Canada with respect to assisted suicide [or, we can add, same-sex marriage] .... I would leave to Parliament the responsibility of taking the pulse of the nation .”

Chief Justice Lamer continues, “ Were the task before me that of taking the pulse of the nation, I too should quail, although as a matter of constitutional obligation, a court faced with a Charter breach may not enjoy the luxury of choosing what it will and will not decide.

But that does not mean that the pulse of the nation does not need to be taken in relation to same-sex marriage and many Canadians believe that it does. That is what they are asking the Government to do. Perhaps the “notwithstanding” clause has a message in this regard too. Might the intention behind its five-year expiry provision with respect to any use of it, with allowance for re-enactment, be in order to provide a pulse-taking period?

As matters stand, the combination of the limitations on a court's basis for decision making, an absolute refusal to use the notwithstanding clause, and the refusal to allow a fully free conscience vote in Parliament on same-sex marriage legislation will mean that the decision on it will be dominated, if not pre-determined, by just legal considerations and the courts' decisions. In the long run, ensuring that all Canadians can believe that their voices were heard on all important aspects in the ultimate decision making forum dealing with same-sex marriage, Parliament, will be as important as the final outcome, whatever that might be.

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