Judicially Licensed Unconstitutionality

Canada prides itself on being a country living under a Constitution governed by the rule of law. That being said, we recognize that, at times, it may appear that acting by the requirements of the law would put the very existence of the State at risk. American judges have pithily remarked that their constitution was not a suicide pact. Without using such a colorful aphorism, judicial bodies applying the Constitution of Canada have taken similar views. The Privy Council, for example, not only allowed the suspension of the rules for the division of legislative powers in time of war, thus enabling the Canadian Parliament to adopt legislation that would normally come under the exclusive jurisdiction of the provincial legislatures, but it also left it to the central government to determine until when the suspension was justified beyond the end of the war. The Supreme Court of Canada, in peacetime, made it possible for the federal Parliament to adopt temporary legislative measures that would normally fall within the exclusive jurisdiction of the provinces to combat an economic crisis characterized as a national emergency. These were creative jurisprudential developments that, while admittedly extending the four corners of the law, aimed at containing the exercise of State powers within the bounds of the law. In response to the state of emergency caused by the fact that the Manitoba Legislature’s “persistent violation of the constitutional dictates of the Manitoba Act, 1870” resulted in the fact that all the statutes it had adopted since the end of the 19th Century were invalid, the Supreme Court went step further in bending the principle of the rule of law. The emergency, here, was not caused by external events, but by the very workings of the law itself. To prevent the chaos and large legal void that would have been created by the immediate invalidation of all Manitoba statutes adopted between 1890 and 1985, the Supreme Court took the unprecedented measure to declare that “[a]ll Acts of the Manitoba Legislature which would currently be valid and of force and effect, were it not for their constitutional defect, are deemed temporarily valid and effective from the date of this judgment to the expiry of the minimum period necessary for translation, re‑enactment, printing and publishing.” The Court wrote that it was “[i]t is only in this way that legal chaos can be avoided and the rule of law preserved.” The Reference re Manitoba Language Rights engaged the Canadian judiciary down a slippery slope leading to weakened constitutional protections. Indeed, the Supreme Court has since developed a habit of endorsing the temporary maintenance of laws that it considers to be unconstitutional. Other courts have followed the Supreme Court’s example and added this judicial mechanism to their judicial toolbox. Thus, the Reference re Manitoba Language Rights opened the door to what we call “judicially licensed unconstitutionality” (JLU). Contrary to the use of the “notwithstanding clause” of s. 33 of the Canadian Charter of Rights and Freedoms that may be used by legislators to shield statutes from the risk of having them declared unconstitutional, JLU, by definition, shields provisions that we know are unconstitutional. Indeed, it is a practice whereby courts recognize that a statute is invalid, unconstitutional, but nonetheless, let it operate during a certain grace period to allow Parliament and Legislatures to remedy its deficiencies. The courts thus apply knowingly legally invalid norms during a set period. That period may also be judicially extended. Since the Reference re Manitoba Language Rights, what was meant to be exceptional, became normalized and courts came to use this technique rather casually – without all the media attention that is otherwise given to the rare moments where the use of the notwithstanding clause is contemplated by legislators. In this article, we intend to offer reflections on the “normalization of the exception” in our constitutional order. We present a genealogy of “judicially licensed unconstitutionality” (JLU) based on an examination of all 147 appellate cases in Canada – be they from provincial courts of appeal, the Federal Court of Appeal, or the Supreme Court of Canada – where suspended declarations of unconstitutionality have been used or discussed between 1985 and 2020. We thus begin by explaining how JLU appeared in the Reference re Manitoba Language Rights and how its use evolved to finally become a mere tool of convenience, used to protect hypothetical popular sensitivities (I). We then examine the short period before Ontario v G when Courts started questioning such liberal use of JLU (II). After presenting the Supreme Court’s ruling in Ontario v G (III), we show that the restraint on the use of JLU has been short-lived in light of the recent Reference re Code of Civil Procedure (Que.), art. 35 (IV). We conclude by offering a proposal to integrate most of the concerns of the three separate opinions in Ontario v G into a single analytical framework that would better respect the purposes of the rule of law (V).

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