When courts fly under the radar

Premier Doug Ford has announced that he will use the notwithstanding clause to override a court’s ruling that the law that reduces the size of Toronto city council is unconstitutional. This step has renewed the debate of how and when this controversial part of the Canadian Constitution should be used.

If the controversy over the notwithstanding clause stems from a discomfort with prolonging the life of laws that have been found unconstitutional, we would be remiss to overlook the relatively unknown but commonly deployed judicial version of it: the suspended declaration of constitutional invalidity.

Suspended declarations of invalidity are court orders that, like the notwithstanding clause, temporarily prolong the life of laws after courts have found them unconstitutional. These orders delay the effect of a declaration of unconstitutionality to a later date, rather than give the declaration immediate effect. In short, these orders keep unconstitutional laws alive for a period prescribed by a court. In recent years, the Supreme Court has used these orders in relation to such issues as physician-assisted death and prostitution. Their purpose is to allow legislatures to cure the constitutional defects in laws in a context that is free from abrupt and at times significant legal changes that might follow immediate declarations of constitutional invalidity.

Since the first use of a suspended declaration in 1985, the remedy has become commonplace in the constitutional law portfolio of the Supreme Court of Canada. Compared to the notwithstanding clause, however, suspended declarations have flown under the radar. These declarations, I submit, are problematic for many reasons.

Suspended declarations exceed the powers expressly afforded to Canadian courts. Our Constitution does not mention these declarations (whereas the South African Constitution, for example, does). The constitutional provision that enables judicial review for constitutionality in Canada — s. 52(1) of the Constitution Act, 1982 — only contemplates immediate declarations of invalidity.

It is therefore no accident that for more than a century after Confederation, suspended declarations of invalidity were unknown in Canada. Where a law was found unconstitutional, it was immediately invalidated. The 1985 case that introduced suspended declarations concerned whether Manitoba was constitutionally required to publish its laws in both English and in French. The Supreme Court found that Manitoba was so required but at the same time acknowledged that, by virtue of this conclusion, most of Manitoba’s laws would be invalidated from the date of their enactment. The Court went on to find that an unwritten constitutional principle — the rule of law — would not countenance a province largely unruled by law. On that basis, the Court issued a suspended declaration to afford Manitoba time to re-enact its unilingual laws in both official languages.

I accept that the rule of law — specifically the dimension of this principle that demands a stable body of laws to rule us — authorizes suspended declarations where an immediate declaration of invalidity would yield lawlessness. I submit, however, that such a scenario is the only justification for these declarations. Since the Manitoba case, the Supreme Court has expanded the list of circumstances in which suspended declarations are legitimate — but it has done so without persuasively anchoring these circumstances in a written or unwritten portion of our Constitution.

While the rule of law authorizes suspended declarations in extreme cases, these declarations can also threaten the rule of law if they are misunderstood. When physician-assisted death was on the horizon in Canada in 2015, a court in Quebec upheld a law in that province that allowed physician-assisted death during the period in which the federal crime of assisted suicide remained valid due to a suspended declaration of invalidity. In Canada, where a valid federal law and a valid provincial law conflict, the federal law prevails. The Quebec court erred by concluding that the federal law was not valid during the period of suspended invalidity. Allowing the Quebec law to operate during that period violated the rule of law.

Suspended declarations also violate the separation of powers in certain cases. Our Constitution, via the notwithstanding clause, only expressly permits legislatures to prolong the life of unconstitutional laws (more specifically, laws that violate certain Charter rights and freedoms). Suspended declarations effectively grant this power to Canadian courts. In relation to physician-assisted death, the federal government asked the Supreme Court in 2016 for an extension of the period of suspended invalidity. The federal government could have invoked the notwithstanding clause to obtain this extension, as the clause applied to the Charter right that was at issue in the litigation. There was, in other words, no need to involve the judiciary. Arguably, in light of the notwithstanding clause and the separation of powers, no court should have issued a suspended declaration of invalidity in the physician-assisted death litigation.

Fortunately, there may soon be an opportunity for the Supreme Court to revisit the principles governing suspended declarations of invalidity. Reminiscent of the Manitoba case, there is an ongoing lawsuit that alleges that Quebec has violated a constitutional duty to enact all of its legislation in both English and in French.

If the Supreme Court finds that Quebec has violated the Constitution, the Court will have — and should take — the opportunity to explain why the judicial version of the notwithstanding clause is authorized in cases that pose a grave threat to the rule of law — and why it is illegitimate in all others.

SUSPENDED DECLARATIONS ALSO VIOLATE THE SEPARATION OF POWERS.