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Norman Siebrasse: Responsive use of the notwithstanding clause will benefit both courts and legislatures

Commentary

The debate over the use of the notwithstanding clause is often framed as a struggle for supremacy between the legislature and the courts, where the side one favours depends on whether one trusts the courts more than the legislature or vice versa. This view misunderstands the problem.

It is not that the legislature is bad and the courts are good, or the other way around. The problem is that crafting laws to promote a just and prosperous society is very difficult. The legislatures and the courts have distinct strengths and weaknesses to bring to bear on this task. I propose that a responsive use of the notwithstanding clause can engage both bodies in a dialogue that builds on their respective strengths to craft laws that respect Charter rights more perfectly than either body can achieve on its own. 

I recently wrote an article for The Hub criticizing a decision of the Supreme Court of British Columbia which implied that there may be a Charter right to use fentanyl in public parks. I concluded that “the time has come for the notwithstanding clause to be used routinely.” This article elaborates on what that “routine” use should look like. 

The use of the notwithstanding clause has typically been pre-emptive, in the sense that it is invoked in the original legislation before any court has ruled on its constitutionality. The problem with the pre-emptive use of the notwithstanding clause is that it signals a dismissive attitude towards Charter rights and the courts. It suggests that the legislature doesn’t care about Charter rights, or at least that the legislature doesn’t care what the courts think about Charter rights. What’s more, because it completely shields the legislation from judicial scrutiny, it fails to take advantage of the courts’ insights into whether the legislation respects the Charter. 

Instead of a pre-emptive use of the notwithstanding clause, I am arguing for a responsive use of the notwithstanding clause, invoked after the court has spoken. As I put it in my earlier article, the legislature should be able to say: “Thank you for your opinion, but on careful reconsideration, we disagree, and it is democratically elected representatives of the people who have the final say.” A responsive approach, unlike a pre-emptive approach, cares what the courts think—and relies on that perspective when making the final decisions that it, as the legislature, ultimately has the competency to make. 

There are structural reasons why judicial oversight of legislative decisions is valuable. The courts are insulated from immediate political pressures and have a deep understanding of the inner workings of the legal system. The legislature, though democratically elected, may be tempted to ride roughshod over the interests of one group in pursuit of a popular agenda. A legislature pursuing a tough-on-crime agenda may find it politically convenient to ignore the rights of an accused in a manner that secures more convictions, at the risk of jailing the innocent. The Charter allows the courts to remind the legislature that the power of the state must be constrained if justice is to prevail.

While the courts have structural advantages, they also have structural shortcomings. As the Supreme Court of British Columbia’s fentanyl park decision illustrates, Charter cases often involve the balancing of rights and interests affecting many more people than those who are represented in the court proceeding. The legislatures are better suited to balancing a wide range of competing interests in multipolar issues. This means that just as the legislature may unjustifiably infringe on individual rights in the pursuit of legitimate objectives, so the courts may overreach when trying to protect those rights in a multipolar context. This is an increasing concern as the trend of Charter jurisprudence in the five decades since the Charter was adopted has seen the reach of the Charter extend further into multipolar policy issues, places where the court’s advantages of isolation from political pressure and unique knowledge of the law do not weigh as heavily in comparison with the courts’ deficiencies in representation and scope. Moreover, the Charter should reflect widely shared, fundamental values, and in these penumbral areas the values of the judiciary, drawn from a stratified educational and socioeconomic class, are more likely to diverge from those of ordinary Canadians.

The view that the notwithstanding clause should rarely, if ever, be used, implies that Charter rights need to be defended by the courts against attack from legislators. But Charter rights are valued by all Canadians—by our elected representatives as much as by the courts. After all, it was our elected representatives who adopted the Charter on our behalf. The responsive approach to the notwithstanding clause considers that the legislators and the courts are not adversaries but rather collaborators; they are engaged in a joint enterprise of interpreting and applying the Charter, using the strengths of one institution to complement the shortcomings of the other.

The fact that the Charter has a notwithstanding clause shows that it was always intended that the legislature have the final word; the question is how to bring the strengths of the judiciary to bear on the relevant legislation.

In a responsive use of the notwithstanding clause, a Charter challenge would wind its way through the courts in the normal manner until appeals are exhausted—even to the Supreme Court of Canada if that is where the litigation process takes it. A responsive use of the notwithstanding clause concerns what happens next, in those cases in which the final court holds the legislation to violate Charter rights.

Often, the response of the legislature will be to recognize that the legislation is indeed unconstitutional. In that case, the legislature need do no more. But in some cases, the legislature, on full consideration, may disagree with the Supreme Court. That should not be surprising—I doubt there is a legal scholar alive who believes that the Supreme Court has been entirely right on every decision in their area of expertise. There is no reason to believe the Supreme Court suddenly becomes infallible when it deals with Charter issues. In such cases, the legislature may choose to reintroduce the legislation, invoking the notwithstanding clause. In some cases, the legislature may decide the Supreme Court was partially right and reintroduce the legislation with amendments addressing some of the Charter violations identified by the Court, while using the notwithstanding clause to preserve other aspects of the legislation.

So far, none of this is new. It is what already happens when the legislature decides to invoke the notwithstanding clause in response to a judicial decision. A responsive use of the notwithstanding clause differs from the standard after-the-fact approach in two ways. 

The first is a matter of attitude. The premise of the responsive approach is that the legislatures are just as legitimate interpreters of the Charter as the courts. When a legislature invokes the notwithstanding clause in response to a judicial decision, it is not because the legislature has decided to pass the legislation even though it violates the Charter; it is because the legislature has decided that the courts were wrong in their interpretation of the Charter—and it is the legislature that has the final say in how the Charter is to be interpreted.

The second is a matter of process. The legislature should explain why it believes the courts were wrong. Before reintroducing the legislation, the legislature should provide a detailed brief, explaining exactly why the notwithstanding clause is being invoked. There are many good reasons why the legislature might disagree with the decision of the Court. In a five-four decision of the Supreme Court, the legislature might reasonably say “We prefer the view of the minority.” If the Court itself considers the issue to be so closely balanced, it seems reasonable to allow the legislature to tilt the balance, rather than leaving the decision to the happenstance of the composition of the court.

If the Supreme Court reversed itself on a Charter point, the legislature might say “No thank you, we preferred the earlier version.” There might also be cases in which the legislature considers that the court has erred by not giving sufficient weight to the interests of the public at large, as I suggested was the case in the fentanyl park decision. In other cases, the legislature might have a substantive disagreement with the Court over the interpretation of the Charter. For example, if the Supreme Court were to hold that inconsistency with Charter “values” which are not found in the text of the Charter can be grounds for holding legislation unconstitutional, the legislature might reasonably say, “We prefer a textual approach.”

Saskatchewan Premier Scott Moe speaks to the media at the Saskatchewan legislature in Regina, on Tuesday, October 10, 2023. The Saskatchewan government plans to invoke the notwithstanding clause to override a judge’s injunction and introduce legislation about the province’s pronoun policy in school. Heywood Yu/The Canadian Press.

Whatever the reason might be, in a responsive use of the notwithstanding clause the legislature would explain in detail why it is choosing to depart from the Court’s decision in a way that is transparent and intelligible to the public. It is then for the public to decide whether it is the courts or the legislature that has the better measure of what the Charter means.

Understood in this manner, a responsive approach to the notwithstanding clause can be seen as reinforcing Charter rights rather than undermining them. Consequently, there is still a role for a pre-emptive use of the clause in some cases, for example, where the Charter landscape on a particular issue is well-established so that the legislature can predict the views of the courts. The pre-emptive use of the notwithstanding clause in such a case should be accompanied by the same kind of detailed explanatory statement as a responsive use.

Another difficulty with a responsive use of the notwithstanding clause is that litigation can be very costly and may delay the implementation of the legislation. In such cases, legislatures could use the clause in an interlocutory manner; that is, while it would be invoked at the outset, it would shield the legislation only for a limited time, perhaps until six months after all appeals are exhausted. If the final court declared the legislation unconstitutional, and the legislature agreed, the invocation of the clause would lapse automatically at the end of that period.

But if, after considering the reasons of the court, the legislature was of the view that the legislation was sound, it would have six months to prepare a responsive brief and re-enact it with the notwithstanding clause. Of course, such a use would strongly signal the legislature’s view of the legislation’s validity. But an interlocutory invocation of the clause would nonetheless invite the input of the courts in a way that a fully pre-emptive use does not.

A responsive use of the notwithstanding clause can prevent the politicization of the courts. In the United States, which does not have a notwithstanding clause, the Supreme Court is the final arbiter of many of the most important issues facing society. This inevitably leads to politicization of the courts, as the elected representatives pursue their political agenda through the judicial appointments process. With a responsive use of the notwithstanding clause, the government of the day can make judicial appointments without excessive regard to the politics of the judge knowing that political control remains with the legislature.

More fundamentally, a responsive use of the notwithstanding clause rejects the notion that the Charter is a weapon used by the courts to defend against depredations of the legislature. Instead, it views Charter interpretation as a dialogue between the courts and the legislature, which draws on the complementary strengths of each to arrive at the best interpretation of the Charter in the interest of all Canadians.

Michael Geist: Red flags abound in new online harms legislation

Commentary

After years of delay, the government tabled Bill C-63, the Online Harms Act this week. The bill is really three-in-one: the Online Harms Act that creates new duties for internet companies and a sprawling new enforcement system, changes to the Criminal Code and Canada Human Rights Act that meet longstanding requests from groups to increase penalties and enforcement against hate but which will raise expression concerns and a flood of complaints, and expansion of mandatory reporting of child pornography to ensure that it includes social media companies.

This post will seek to unpack some of the key provisions, but with a 100+ page bill, this will require multiple posts and analysis. My immediate response to the government materials was that the bill is significantly different from the 2021 consultation and that many of the worst fears—borne from years of poorly thought-out digital policy—have not been realized. Once I worked through the bill itself, concerns about the enormous power vested in the new Digital Safety Commission, which has the feel of a new CRTC funded by the tech companies, began to grow.

At a high level, I offer several takeaways. First, even with some of the concerns identified below, this is better than what the government had planned back in 2021. That online harms consultation envisioned measures such as takedowns without due process, automated reporting to law enforcement, and website blocking. Those measures are largely gone, replaced by an approach that emphasizes three duties: a duty to act responsibly, a duty to make certain content inaccessible, and a duty to protect children. That is a much narrower approach and draws heavily from the expert panel formed after the failed 2021 consultation.

Second, there are at least three big red flags in the bill. The first flag involves the definitions for harms such as inciting violence, hatred, and bullying. As someone who comes from a community that has faced relentless antisemitism and real threats in recent months, I think we need some measures to combat online harms. However, the definitions are not without risks that they may be interpreted in an overbroad manner and have implications for freedom of expression.

The second flag—related to the first—is the incredible power vested in the Digital Safety Commission, which will have primary responsibility for enforcing the law. The breadth of powers is remarkable: rulings on making content inaccessible, investigation powers, hearings that under certain circumstances can be closed to the public, establishing regulations and codes of conduct, and the power to levy penalties up to 6 percent of global revenues of services caught by the law. There is an awful lot there and questions about Commission oversight and accountability will be essential.

The third flag is that the provisions involving the Criminal Code and Canadian Human Rights Act require careful study as they feature penalties that go as high as life in prison and open the door to a tidal wave of hate speech-related complaints.

Finally, this feels like the first internet regulation bill from this government that is driven primarily by policy rather than implementing the demands of lobby groups or seeking to settle scores with big tech. After the battles over Bills C-11 and C-18, it is difficult to transition to a policy space where experts and stakeholders debate the best policy rather than participating in the consultation theatre of the past few years. It notably does not include Bill S-210 style age verification or website blocking. There will need to be adjustments in Bill C-63, particularly efforts to tighten up definitions and ensure effective means to watch the watchers, but perhaps that will come through a genuine welcoming of constructive criticism rather than the discouraging, hostile processes of recent years.

Now to the bill with a mini-FAQ.

Which services are caught by the bill?

The bill covers social media services, defined as “a website or application that is accessible in Canada, the primary purpose of which is to facilitate interprovincial or international online communication among users of the website or application by enabling them to access and share content.” The Act adds that this includes adult content services and live streaming services. The service must meet a certain threshold of users in Canada for the law to apply (the threshold to be determined).

What duties do these services face?

As noted above, there are three duties: a duty to act responsibly, a duty to make certain content inaccessible, and a duty to protect children. The duty to act responsibly is the most extensive and it focuses on “measures that are adequate to mitigate the risk that users of the service will be exposed to harmful content on the service.” The Digital Safety Commission will be empowered to rule on whether companies have met this duty. Requirements include offering the ability to block users and flag content. The services must maintain available contacts and submit a digital safety plan to the Commission for review. There are detailed rules on what must be included in the plan. The services must also make their data available to researchers, which can be valuable but also raises potential privacy and security risks. The Commission would be responsible for accrediting researchers.

A duty to make certain content inaccessible focuses on two kinds of content: content that sexually victimizes a child or revictimizes a survivor or intimate content communicated without consent. The service must respond to flagged content and render it inaccessible within 24 hours. There is a notification and review process that follows.

A duty to protect children requires services to “integrate into a regulated service that it operates any design features respecting the protection of children, such as age-appropriate design, that are provided for by regulations.” There are few details available at this stage in the legislation about what this means.

A man uses a computer keyboard in Toronto in this Sunday, Oct. 9, 2023 photo illustration. Graeme Roy/The Canadian Press.
What harms are covered by the bill?

There are seven: sexually victimizing children, bullying, inducing a child to harm themselves, extremism/terrorism, inciting violence, fomenting hatred, and intimate content without consent including deep fakes.

How are these defined?

The definitions are where there may concerns in some instances. They are as follows:

Intimate content communicated without consent. This involves visual recordings involving nudity or sexually explicit activity where the person had a reasonable expectation of privacy and did not consent to the communication of the recording.

Content that foments hatredRefers to content that expresses detestation or vilification of an individual or group of individuals on the basis of a prohibited ground of discrimination, within the meaning of the Canadian Human Rights Act, and that, given the context in which it is communicated, is likely to foment detestation or vilification of an individual or group of individuals on the basis of such a prohibited ground.

Note that content has to reach a certain threshold to “foment hatred”—content does not express detestation or vilification solely because it expresses disdain or dislike or it discredits, humiliates, hurts, or offends.

Content that incites violence. This means content that actively encourages a person to commit—or that actively threatens the commission of—an act of physical violence against a person or an act that causes property damage, and that, given the context in which it is communicated, could cause a person to commit an act that could cause

(a) serious bodily harm to a person;

(b) a person’s life to be endangered; or

(c) serious interference with or serious disruption of an essential service, facility, or system.

Content that incites violent extremism or terrorism. This means content that actively encourages a person to commit—or that actively threatens the commission of—for a political, religious, or ideological purpose, an act of physical violence against a person or an act that causes property damage, with the intention of intimidating or denouncing the public or any section of the public or of compelling a person, government or domestic or international organization to do or to refrain from doing any act, and that, given the context in which it is communicated, could cause a person to commit an act that could cause

(a) serious bodily harm to a person;

(b) a person’s life to be endangered; or

(c) a serious risk to the health or safety of the public or any section of the public.

Content that induces a child to harm themselves. Refers to content that advocates self-harm, disordered eating, or dying by suicide or that counsels a person to commit or engage in any of those acts, and that, given the context in which it is communicated, could cause a child to inflict injury on themselves, to have an eating disorder or to die by suicide.

Content used to bully a child. This means content, or an aggregate of content, that, given the context in which it is communicated, could cause serious harm to a child’s physical or mental health, if it is reasonable to suspect that the content or the aggregate of content is communicated for the purpose of threatening, intimidating or humiliating the child.

Content that sexually victimizes a child or revictimizes a survivor. This is a very long definition that includes multiple visual representations.

These are all obvious harms. The challenge will be to ensure that there is an appropriate balance between freedom of expression and safeguarding against such harms. There are clearly risks that these definitions could chill some speech and a close examination of each definition will be needed.

Emma Williamson, 11, plays on the internet on Wednesday, Nov. 29, 2006 at her home in Toronto. Nathan Denette/CP Photo.
How will the law be enforced?

This is the biggest red flag in the bill in my view. Enforcement lies with the new Digital Safety Commission, a new entity appointed by government with between three and five commissioners, including a chair and vice-chair. The Commission’s powers are incredibly broad-ranging. It can issue rulings on making content inaccessible, conduct investigations, demand any information it wants from regulated services, hold hearings that under certain circumstances can be closed to the public (the default is open), establish regulations and codes of conduct, issue compliance orders, and levy penalties up to 6 percent of global revenues of services caught by the law for compliance violations. Failure to abide by Commission orders can result in penalties of up to 8 percent of global revenues. The scope of the regulations covers a wide range of issues.

The law says the Commission must consider privacy, freedom of expression, and equality rights, among other issues. Despite those powers, the Commission is not subject to any legal or technical rules of evidence, as the law speaks to acting informally and expeditiously, an approach that seems inconsistent with its many powers.

In addition to the Commission, there are two other bodies: the Digital Safety Ombudsperson, who is responsible for supporting users, and the Digital Safety Office, which supports the Commission and Ombudsperson.

Who pays for all this?

Potentially the tech companies. The Act includes the power to establish regulations that would require the services caught by the Act to fund the costs of the Commission, Ombudsperson, and Office.

What about the Criminal Code and Human Rights Act provisions?

There are several new provisions designed to increase the penalties for online hate. This includes longer potential prison terms under the Criminal Code, including life in prison for advocating or promoting genocide. There are also expanded rules within the Canadian Human Rights Act that open the door to an influx of complaints on communicating hate speech (note that this does not include linking or private communications) with penalties as high as $20,000. These provisions will likely be a lightning rod over concerns about the chilling of speech and overloading the Human Rights Commission with online hate-related complaints.

And the mandatory reporting of child pornography?

These provisions expand the definition of Internet services caught by the reporting requirements.

This column originally appeared on michaelgeist.ca.