Premier Doug Ford has announced that he will use the notwithstanding clause to override a court’s ruling that the law which 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 issues such 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.
Ontario Premier Doug Ford attends Question Period at the Ontario Legislature in Toronto, on Wednesday, September 12, 2018.
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 …read more