Canadians would be forgiven for thinking that grocery stores are where food is made given how much attention they are getting in the debate about food inflation.

While they may be where most consumers interact with the food system, consumers pay at the checkout for what can be a long, complex value chain. Governments must look past the checkout if they want to take more substantive action to tackle food affordability.

Policymakers are not usually lucky enough to get evidence this consistent. The Bank of Canada, academics, researchers, and public institutions in the US and EU all point to food inflation being driven higher by a long list of causes. Most conclude that inflation will slow when those causes, from Russia’s war to higher interest rates, resolve themselves.

While consistent evidence may make for good policy, it doesn’t always make for good politics. Politics seems to be driving the focus on grocery stores and CEOs. Many politicians have jumped on the bandwagon, with the government demanding retailers take “immediate action to stabilize food prices.”

Thursday’s announcement from the government trumpeted the results of those demands. Grocers will offer “aggressive discounts…, price freezes, and price-matching campaigns.” The government will also increase support for its internal consumer advocacy unit, continue to support industry-led efforts to establish a voluntary Grocery Code of Conduct and improve the availability and accessibility of data.

These steps build on the recent Affordable Housing and Groceries Act. The Act should increase transparency, but likely not lead to more affordable groceries.

More affordable groceries require a more substantive approach.

Even the recent Competition Bureau report which concluded that grocery margins in Canada have increased by a “modest, yet meaningful” amount highlighted that the grocery sector is a low-margin, competitive business. The Bureau cites foreign retailers who admit that “it could be difficult to compete on price” in Canada.

The actions promised to the government by the retailers, including price matching and steep discounts on some products reflect the typical competitive business practices in a concentrated but competitive sector.

The focus on retail continues to miss that it is a complex, dynamic set of pressures that are keeping food prices high. The variation in inflation inside the grocery store itself underscores how complex the issue is.

These dynamics may not lend themselves to easy solutions, but they do offer governments more levers to pull to offer short-, medium- and long-term relief from food inflation. There is a recent example for how governments should tackle challenges like this.

In the midst of global supply chain disruptions, the government launched a National Supply Chain Task Force with the objective of making independent recommendations regarding “short and long term actions to alleviate supply chain congestion.”

The final report lays out a series of recommendations built around the theme of “Action. Collaboration. Transformation.” The recommendations address factors ranging from service reliability and resilience to shifts in governance.

Launching a food affordability task force is not as flashy as convening grocery CEOs in Ottawa, but it should enable more substantive action. The task force should have three priority mandates.

First, it should build on the commitment to increase the availability of data by producing detailed analysis on food inflation drivers along the value chain. A good example of the analysis the task force should do is the U.S. Department of Agriculture’s Food Dollar research program, which breaks down the cost components of the value-chain.

Second, the task force should make concrete recommendations for the public and private sector. The task force should acknowledge global forces, but focus on where Canadians can act. This could include looking at the dynamics at the retail level, but must also include an examination of systemic issues including supply chain fluidity, regulatory burden and taxes and recommending where costs can be driven down.

Finally, the task force should look at where the government can take immediate, targeted, actions to support those hit hardest by high food prices. This should include considering the recommendations of Food Banks Canada who recently gave Canada a D+ in its inaugural Poverty Report Card. The report highlights that while food prices are the result of the food system, the impact is part of a broader poverty challenge that must involve solutions beyond the food system’s scope.

Unfortunately, the Supply Chain Task Force has shown that writing the action plan can be the easy part, acting on it is harder.

Complex issues do not tend to lend themselves to the silver bullets governments prefer. While the government says “all options are on the table” to “stabilize” prices, there seems to be a focus on CEOs and theoretical windfall profits. Other solutions such as exempting food from the carbon price (as is done with GST) or changing sensitive ag policy don’t appear to be on the table.

The good news is that the evidence already points to slowing food inflation. The day that the prime minister announced the government was summoning the CEOs to Ottawa, the Globe and Mail ran a story about the long slow return to normal of food prices. The day after the grocery CEOs were in Ottawa, Statscan confirmed that the annual growth in food prices had slowed to its slowest rate since February 2022.

Even if inflation slows, many of the pressures will remain. If the political pressure falls with food inflation, the opportunity will still exist to do something substantive. It may not be easy, but it would be worthwhile.

Premier Scott Moe vowed to use the notwithstanding clause to override a court ruling that paused the province’s high school pronoun policy last week.

It’s another example of an increased willingness among provinces to use section 33 of the Charter and, in the case of Saskatchewan, to use it preemptively, before the courts have made a judgment on a law’s constitutionality.

Here at The Hub, we’ve assembled some of the country’s top legal minds for their instant reactions to the ongoing controversy.

Moe needs to make a more convincing case

By Joanna Baron

The Saskatchewan dispute over preferred pronouns and Premier Scott Moe’s decision to pre-emptively invoke the notwithstanding clause is a fairly classic example of a case where the judiciary and legislature, based on their different informational inputs, have arrived at different conclusions about the content of rights.

To the King’s Bench judge who granted an interlocutory injunction against the policy, the risk of irreparable harm to trans youth was sufficiently made out. The Moe government, meanwhile, mirrors the overwhelming democratic preference for “parental rights,” for parents to be consulted in their child’s decision to socially transition. The policy only applies to children under the age 16.

At the court hearing, there was credible evidence brought on both sides. UR Pride’s experts focused on the mental health risks associated with a lack of support for a gender-diverse child. The government of Saskatchewan, for its part, tendered evidence from a Berkeley clinical psychologist who testified that parental involvement, as well as a professional assessment and medical plan, in youth gender identity was essential to avoid long-term gender dysphoria and other harms.

The thrust of UR Pride’s argument for the long-term risks of the preferred pronouns policy is that it presents dangers to the “minority within a minority,” the highly vulnerable group of gender-diverse youth who fear coming out to their parents as trans and thus would be prejudiced by a policy requiring parental consent prior for preferred pronouns. The policy does somewhat account for situations where harm may be present:

“In situations where it is reasonably expected that gaining parental consent could result in mental, physical, or emotional harm to the student, they will be directed to the appropriate school professional(s) for support.”

“Reasonably expected” accords a wide latitude for teachers and school staff to make judgments about a child’s home environment and, hopefully, exercise discretion accordingly.

By invoking the notwithstanding clause, Saskatchewan is signalling that it has a different interpretation of how to balance the rights of parents and children in a context where rapid onset gender dysphoria is on the rise, that includes a protected role for parents. It has turned its mind to accommodations where a child may be at risk. What remains to be seen is exactly what this interpretation is.

This week, Moe scrummed and claimed that s. 33 was intended to balance rights protected in the Charter with those not included (like parental rights). This is a bizarre take, and given that a government invoking the notwithstanding clause bears the political consequences of it, he will need to make a more compelling case.

Invoking section 33 is surprisingly cost-free for politicians

By Sean Speer 

In light of the recent use of the notwithstanding clause, there have been calls to constrain its invocation through some mix of legislative and constitutional action. I’ll leave it to others to debate the merits (or demerits) of these legalistic proposals. 

It seems to me though that a lot of these arguments fail to account for the principal constraint envisioned by those involved in drafting the 1982 Constitution: politics. 

It was assumed that politicians would need to consider the political trade-offs involved in invoking S.33 and that the inherent political costs of doing so would weigh heavily on their decisions. The basic idea was that, in a diverse and pluralistic society, there would be few issues with clear majority positions and therefore fragmented and shifting public opinion would serve as a check on the notwithstanding clause. 

It prompts the question: why haven’t politics acted as a greater constraint in recent years? I would point to two explanations.

The first is that judicial decision making has itself become political by which I mean it has come to too often advance conventional left-wing political views divorced from the constitution, and as a result eroded the distinction between the judiciary and the legislature. If the courts are going to effectively substitute their own political preferences for those of the duly elected legislature, it’s not a huge surprise that at some point politicians are going to push back. And it’s hard not to blame them. Who’s better placed to do social policy? Parliament or judges?

That many in the world of legal commentary and scholarship seem to believe that it’s the latter speaks to how we’ve ended up with the growing use of the notwithstanding clause. It reflects a general and specific corrective to a judiciary that has become unmoored from its institutional responsibility.

(I would say in parenthesis that I became personally motivated about judicial overreach in the aftermath of the Carter decision on physician-assisted death. It’s not because I was strongly opposed to the decision per see [though on balance I probably oppose the legal regime that’s followed it] but rather that we could get a unanimous decision on a new right to physician-assisted death barely twenty years after the same court had ruled that no such right existed. The 2015 decision laid bare in my mind [and the minds of many other Canadians] that the courts aren’t interpreting the constitution so much as rendering political judgements based on a combination of their read of the public mood and the political preferences of the judges themselves.)

A more circumscribed judiciary—one that “stayed in its lane”—would restore greater balance to Canada’s civic architecture and lead to less use of the notwithstanding clause.

The second factor is a bit more surprising and difficult to explain. There has been less political reaction to its use. The costs have been lower than one might have expected.

One explanation is that governments have invoked S.33 on a judicious basis and only selected cases in which the political costs are minimal. If so, then it might be the case that the initial assumptions about the constraining role of politics have proven generally correct. We haven’t for instance seen Canadian governments use the notwithstanding clause to suspend judicial decisions on highly contentious issues like abortion or same-sex marriage or even physician-assisted death.

There are exceptions though such as Quebec’s Bill 21 where one would assume that the political costs of infringing certain rights would come with bigger costs. Governments should in theory be facing greater opposition from political opponents, stakeholder groups, and citizens themselves for their choices. That they’re not in practice risks undermining a key transmission mechanism embedded in the notwithstanding clause.

(Bill 21 is an interesting example where federal politicians have justified their silence on the grounds that there isn’t much that they can do from a legal standpoint to overturn the Quebec government’s policy. This position however neglects the influence that their political opposition may have on the public debate including for those within Quebec who may be hesitant to actively oppose the legislation.)

The upshot: instead of trying to curtail S.33 or get rid of it altogether, critics of the notwithstanding clause should agitate and organize against its use in order to raise its political costs. That would help to restore the balance that was struck in the 1982 Constitution and ensure that it continues to be used carefully and judiciously.

A taboo well and truly broken

By Dave Snow

Not long ago, the notwithstanding clause was taboo, a “paper tiger” outside Quebec that would spell doom for any government choosing to invoke it. Those days are long gone. If Saskatchewan’s proposed parental consent legislation passes, provinces will have introduced eight bills invoking the clause since 2017, and six of those will have received royal assent. Moreover, all four provincial governments that have introduced bills invoking section 33 have subsequently been re-elected to larger majorities than they had at dissolution.

As the political taboo has faded, scholarly debate over the clause has thrived. My research-in-progress has identified over 30 peer-reviewed pieces published on the notwithstanding clause since 2018. The quality is generally superb, with scholars both more and less favourable towards the clause engaging with thoughtful interpretations of political history. Unfortunately, this nuance often evaporates as soon as legal advocacy groups and experts are asked to comment on the clause in major media outlets. For instance, Saskatchewan’s proposed use has been denounced as the “nuclear option” that will “destroy the rights of students,” a “horrifying” idea that “undermines the very idea of rights protection for all.”

Whenever a premier proposes invoking the clause, legal commentary in major outlets takes on a familiar two-part refrain: first, the clause should only be used as a “very last resort” (an argument I have argued is unsupported by the text, history, and Supreme Court doctrine on section 33). Second, if the clause is invoked in response to a judicial decision, its use “in these circumstances” is “extremely concerning.” (I have yet to see a notwithstanding clause skeptic identify a circumstance in which its use wasn’t concerning.)

Collectively, this legal commentary takes on the character of “heads I win, tails you lose”: the notwithstanding clause should never be invoked before a judicial decision, and if it is invoked in response to one, that particular use is wrong. With the political taboo over the notwithstanding clause broken, we need to have more sophisticated conversations about the competing rights, interests, and values at stake whenever the clause is invoked. The scholarship has moved on—our media commentary should too.

An appropriate response

By Stéphane Sérafin

Saskatchewan’s use of S.33 was an appropriate response to the challenge brought in this case. While lawyers and judges in Canada have grown accustomed to deference from the legislatures on matters of social policy, there is no reason to think that such deference should be given in every case. Certainly, universal deference was not contemplated in our constitutional settlement, which wisely provided for the inclusion of S.33 alongside the grant of judicial review powers for enumerated rights. No particular difficulty arises from the prospective use of S.33 either, which has precedent in Quebec.

The case at hand furnishes a particularly good illustration of the reasons for which this constitutional settlement was reached in the first place. Although the dispute has been framed on both sides as a matter of “rights,” this framing reflects a political and legal culture that has become too centred on rights-based judicial review.

In reality, the core of the dispute pertains to whether parents ought to be given the full information necessary to fully discharge the duties that they generally assume towards their children. The groups behind the Charter challenge believe that schools should withhold information and perhaps even actively mislead parents on one specific subject, namely, on whether children have decided to change their names and genders on official school lists. It is hard to see how a Charter challenge, whether successful or not, could have contributed constructively to the public discussion that ought to take place on this issue.