Is there anything more Canadian than the fact that a Member of Provincial Parliament who issued a statement after a barbaric massacre of innocents in Israel, in which she (checks notes) neglected to mention the atrocity at all, criticized Israel, and edified the violence as justified retaliation, was kicked out of caucus by her party not for completely lacking a moral compass but for contributing to an “unsafe work environment” and undermining “collective work”?

To recap: on October 10, as the world was still reeling from images of bleeding and brutally murdered Jewish babies, grandmothers, and young women, the now former NDP MPP for Hamilton Centre Sarah Jama took to X to respond. Jama stated that she was “reflecting on her role as a politician participating in this settler colonial system.” She accused Israel of apartheid, using chemical warfare against Gazans, and referred to “retaliation rooted in settler colonialism.”

Jama is 29, but she still has the fervour and guilelessness of an even younger university activist. Earlier this year after winning a byelection in Hamilton Centre, she apologized after retweeting a post calling an Islamic Jihad terrorist a “martyr.” I know her type well: watching the likes of Jama contort language to justify the suicide bombings of pizza parlours and buses during the Second Intifada was a canon event for me as a McGill undergraduate which profoundly shaped my worldview.

On October 18, Ontario legislative house speaker Paul Calandra moved to censure Jama’s “disreputable conduct” and authorize the speaker not to recognize her until she retracted and deleted her comments and apologized in the house. In response, Jama apologized—and then pinned her original statement to the top of her X profile, an act perceived by many in Queen’s Park as defiant. She also sent a cease-and-desist letter to Doug Ford accusing him of libel. 

That brings us to this week, when NDP leader Marit Stiles finally announced that she would eject Jama from caucus for the aforementioned “unsafe work environment” and the undermining of “collective work.” In the same session, the PC party supported the censure motion, which would prevent the Speaker from recognizing Jama until she apologizes publicly and on screen. The NDP dissented; the Liberal Party abstained. The vote count was 63 to 23.

While it seems commonsensical that a parliamentary motion preventing an elected member from speaking, and even compelling her public apology as a condition precedent for doing so, carries free speech implications, the reality is more complicated. The idiosyncrasies of parliamentary privilege—a doctrine developed as a hedge against authoritarianism—mean that while Jama may have a moral claim that her right to free speech has been violated, she has no such legal claim.

Parliamentary privilege is the idea that legislators bear inherent privileges, which courts cannot review or interfere with. Parliamentary privilege covers an expansive swath of activity, including the power of legislatures to regulate their own internal affairs and the power to discipline their members as they see fit.

As Justice Fregeau noted in Alford v Canada, a 2022 case brought by law professor Ryan Alford challenging provisions of a federal act for encroaching on parliamentary privilege:

[t]he effect of a matter falling within the scope of parliamentary privilege is that its exercise cannot be reviewed by any external body, including a court…parliamentary privilege recognizes Parliament’s exclusive jurisdiction to deal with complaints within its privileged sphere of activity, thus providing immunity from judicial review.

This means neither Jama’s statements nor her colleagues’ chosen actions in addressing them could be challenged in a court. 

Another recent example of the bright line of parliamentary privilege shielding a legislator’s actions from judicial review was Ontario Premier Doug Ford’s 2022 refusal to testify after being summoned to give evidence at the Public Order Emergency Commission, despite almost certainly possessing relevant evidence about the response to the Ottawa convoy protests. Whatever the political consequences, the court decided that as a sitting member of the legislature, his decision was immunized from judicial review while the legislature was in session.

Parliamentary privilege historically evolved as a shield against the improper meddling of the executive—in particular, zealous kings and queens. For example, in 1629, King Charles I ordered two parliamentarians imprisoned for alleged seditious statements made in Parliament. Parliamentary privilege evolved in response to executive overreaches like this because for Parliament to effectively act as a prophylactic against totalitarian rulers, parliamentarians had to be free to speak their minds without fear of reprisal from the Crown.

These rules appear to jostle uncomfortably with the (correct) proposition that the Constitution is the supreme law of Canada. However, Parliamentary privilege and Charter rights including the right to freedom of expression are both parts of the constitution. In Nova Scotia v. New Brunswick Broadcasting, where journalists challenged a ban on video cameras in the legislature as a violation of their free expression rights, Justice McLachlin explained that it is a “basic rule” that one part of the Constitution cannot be abrogated or diminished by another part of the Constitution (and thus the legislature’s decision to forbid recording could not be reviewed by a court).

Though all Canadians enjoy the right to not have our speech censored directly or indirectly by government action, this doesn’t mean parliamentarians can’t be subject to discipline from the legislature or their party. Bluntly, the right to free speech does not equal a right to speak in a session of the legislature.

Legality aside, even if the legislature has full purview to censure Jama by way of motion, that doesn’t mean they ought to. Silencing Jama is likely to render her a heroine for progressives and provoke sympathy that she doesn’t deserve. The optics of a young Black woman made the whipping girl of Queen’s Park by its old, white, ham-fisted leader Doug Ford are not good. Instead, Queen’s Park should let Jama continue to spout her apparent apologias for terror and let voters express their disapproval of them at the next election.

Late last year, Gib van Ert, president of the Canadian Council on International Law and an authority on the application of international law in Canadian courts, and Prof. Amir Attaran of the Faculty of Law, University of Ottawa published a proposal in the Hill Times for a new law that would impose constraints on the use of section 33 of the Charter—the so-called “notwithstanding clause”—based on Canada’s international obligations. Their proposed “Notwithstanding Act” would oblige the federal cabinet to use its power to disallow a federal or provincial law (a power not used since World War II) every time a legislature uses section 33 to pass a law that either the federal cabinet or the Supreme Court of Canada concludes is inconsistent with an international treaty to which Canada is a party. The proposal recently attracted new attention in the wake of Saskatchewan’s decision to invoke section 33 to pass legislation saying that students under 16 must have parental consent to change their names or pronouns at school.

The Hub has invited Mr. van Ert and Howard Anglin, a regular contributor, to debate the merits of the proposed Notwithstanding Act. This debate will take place in two parts. Today, in Part 1, Mr van Ert describes and defends the proposed Act and Mr Anglin responds with an initial critique. Tomorrow, in Part 2, Mr van Ert and Mr Anglin will each offer two brief responses to the other’s arguments.

Introduction by Gib van Ert

On a plain reading of its terms, the notwithstanding clause (section 33 of the Constitution Act, 1982) would allow a provincial legislature to suspend, for five years less a day, the right of Jews (or Muslims or Christians or Sikhs, etc.) to practice their faiths—and to renew that suspension every five years indefinitely. 

Also on a plain reading of section 33, a legislature could suspend for five years less a day the right of free speech. Or the right to liberty. Or the right to equality. Or even the right to life. And maintain those suspensions indefinitely.

There is a view, current in some political and legal circles, that the capacity of section 33 to shelter the most outrageous human rights violations from all judicial oversight is not a bug but a feature. The notwithstanding clause says what it means and means what it says. It is an express provision of our Constitution—indeed, of our Charter—and there is no power reserved to the courts to impose any limits on it. 

There may, however, be a power in Parliament to impose limits on it. In an article Prof. Amir Attaran and I published in the Hill Times last December, we proposed that Parliament enact a law requiring the federal cabinet to review all exercises of section 33—whether provincial or federal—for consistency with Canada’s international legal obligations. Where an invocation of the notwithstanding clause would put Canada in breach of those obligations (as determined, where needed, by reference to the Supreme Court of Canada), our proposed law would require cabinet to disallow that enactment under sections 56 and 90 of the Constitution Act, 1867.  

I suggest there are at least three merits to this idea. 

First, a Notwithstanding Act would impose some level of protection against the worst potential excesses of the notwithstanding clause. For instance, all forms of overtly discriminatory laws—expressly targeting vulnerable religious, racial, or ethnic minorities—would be captured. In the aftermath of the Second World War, the victorious powers denied such discrimination the imprimatur of law in instruments such as the UN Charter, the Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights. 

Second, a Notwithstanding Act would measure exercises of section 33 against an objective external standard, namely Canada’s obligations under international human rights law. Successive federal governments, Conservative and Liberal, have freely contracted these obligations. They are not the products of judicial creativity, as might be said of the unwritten constitutional principles described by the Supreme Court of Canada in the Secession Reference and other cases. 

Third, scrutinizing exercises of the notwithstanding clause for consistency with our international obligations is in keeping with the constitution’s recognition that the conduct of foreign relations (“External Affairs” in historic Canadian parlance, “Global Affairs” in the idiom of the current government) rests with the federal Crown. Provincial, or even federal, laws that breach Canada’s international obligations are incursions into Canadian foreign policy which—assuming we strive for an intelligible and consistent foreign policy—ought to be discouraged.

Many objections can be made to this idea, and indeed Howard Anglin will make some of them (no doubt forcefully) in his response to this article. I will address only one now. The federal government’s disallowance power has not been exercised in decades. Some commentators have gone so far as to question whether it remains part of our law. Of course it does. It is written into the 1867 Constitution, just as the notwithstanding clause is written into the 1982 Constitution. Both provisions are, in the words of section 52 of the Constitution Act, 1982, part of “the supreme law of Canada”. 

Response by Howard Anglin

I am pleased to have an opportunity to respond to Gib van Ert’s creative scheme to neuter section 33 of the Charter of Rights and Freedoms. Before I get to (some of) my (many) disagreements, let me acknowledge a significant point of agreement: Mr. van Ert’s proposal is viable. I agree that the federal government’s disallowance power—the cabinet’s ability to nullify any provincial law—remains available, despite not being used for 80 years. 

My primary concern is not, therefore, technical; it’s far more serious. Not to put too fine a point on it, but the revival of the disallowance power—not just as a potential political remedy but a legal requirement—would provoke a constitutional crisis. It’s hard to imagine a single act that could do more to inflame smouldering separatist sentiment in Quebec or spark it in Alberta and Saskatchewan. 

One can, of course, believe that some laws are so inhumane, so evil, that disallowing them would justify burning down our constitutional order, but viewed objectively among our peer countries, Canada is not an obvious moral outlaw. In fact, I can’t think of a single current or contemplated law, including those I dislike, that doesn’t have an analogue among one or more of our peer countries who are also signatories to international human rights treaties. I would, therefore, respectfully suggest that committing constitutional arson would be a rather rash and foolish overreaction at this time.

My second objection is that the proposed Act would be unconstitutional in the profound and venerable sense that it’s inconsistent with established and generally accepted political practice (I explain this sense here). Namely, it violates two foundational constitutional settlements: it undermines section 33 of the Charter, which is conditio sine qua non of the 1982 constitutional settlement; and it violates the original terms of confederation, which allocated certain legal powers to the federal government and others to the provinces. 

On this second point, the Supreme Court of Canada has affirmed that just because the federal government has signed a treaty that touches on an area of policy assigned to the provinces doesn’t give them the constitutional authority to meddle with provincial policy. So far so good. But Mr. van Ert knows this, which is why he proposes instead to deploy the nuclear option of disallowance to circumvent the strictures of federalism. The Act attempts to do indirectly what cannot be done directly, and it would blow a hole in the division of powers as large as the folly of the federal cabinet. 

My other objections will have to await the further back and forth, but I will quickly respond to one more of Mr. van Ert’s points and raise another one.

First, he says his Act “would measure exercises of s 33 against an objective external standard, namely Canada’s obligations under international human rights law.” This is wishful thinking. International human rights instruments are written at such a high level of hortatory abstraction that their application to specific Canadian laws would be inherently contestable and thus immediately controversial. Internationally, they have proved susceptible to the same textually untethered interpretation as the Charter, so the proposed involvement of the Supreme Court would unwisely drag the judiciary into intensely politicised federal-provincial disagreements.

Finally, the Act assumes that an advisory opinion on international law should trump democratically-enacted domestic law. This would incur a democratic deficit so large it would hazard political bankruptcy. Requiring the federal cabinet to disallow democratically enacted provincial laws based on the advisory opinion of five ex-lawyers reading the tea leaves of international law would be the end of 200 years of responsible government. It would remove government farther from the people and exacerbate popular disillusionment with politics, courts, and the Constitution.