Reserving s. 33 for the right moment

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TL;DR

The notwithstanding clause (s 33) is back in use in provincial legislatures, and so is in the news, in law journals, and in the courts. Prominent by its absence is Parliament. In this piece, I suggest Parliament could (and should!) play a greater role in governing the use of the notwithstanding clause. Specifically, I argue that Parliament could, through legislation, require the Privy Council to instruct the Governor General (GG) and Lieutenant Governors (LGs) to withhold royal assent to legislation unless that legislation is passed through a double supermajority (i.e. a 2/3rds majority of two houses). I also argue that Parliament could entrench these instructions through politically-costly manner and form requirements. Finally, I contend that it would be proper for Parliament to do both these things — it is not inconsistent with underlying constitutional principles of democracy, federalism, or legislative sovereignty.

Background

After eighteen years in abeyance, s 33 has been invoked in provincial legislation six times since 20181See Wikipedia list. Two of these uses were by Quebec, historically the most aggressive user of the power; another was by Saskatchewan, which had used the power once 32 years prior; one was by New Brunswick, for the first time in its history; and two were by Ontario to affect elections. One of these two uses concerned the City of Toronto case; the invoking legislation was abandoned after the appeal to ONCA went Ontario’s way. Numerous articles and thinkpieces have commented on these usages. Some scholars and advocates seek to find a different constitutional basis on which to strike down legislation protected by s 33.2These might include other sections of the Charter not subject to s 33 (such as the democratic rights in ss 3-5; mobility rights in s 6; language rights in ss 16-23; or gender rights in s 28), other non-Charter limitations on legislative power (such as aboriginal treaty rights), or the division of powers between Canada and the provinces: see, e.g., Robert Leckey, “Advocacy Notwithstanding the Notwithstanding Clause” (2019) 28:4 Constitutional Forum / Forum constitutionnel 1.. Others suggest the use of s 33 may itself be inconsistent with higher-level small-c constitutional principles such as democracy and the rule of law3See, e.g., Jeffrey B Meyers, “What We Talk About When We Talk About the Rule of Law” (2021) 7 Canadian Journal of Comparative and Contemporary Law 405; Jamie Cameron and Bailey Fox, “Toronto’s 2018 Municipal Election, Rights of Democratic Participation, and Section 2(b) of the Charter” (2021) 30:1 Constitutional Forum 18; Peter C Oliver, “‘A Constitution Similar in Principle to That of the United Kingdom’: The Preamble, Constitutional Principles, and a Sustainable Jurisprudence” (2019) 65:2 McGill LJ 207; Andrew Caddell, “The notwithstanding clause has long passed its best-before date,” The Hill Times (16 June 2021), online.. Still others focus on the provincial legislative process4See, e.g., Allan C Hutchinson, “Ontario’s approach to the notwithstanding clause was not as democratic as it could have been,” (17 June 2021), online, or the particulars of an individual decision to invoke s 335See, e.g., Cameron and Fox (2021); Andrew Coyne, “Even without the notwithstanding clause, Ford’s election spending law is awful,” The Globe and Mail (16 June 2021), online; John Michael McGrath, “The notwithstanding clause isn’t meant to be safety net for political blundering,” TVO (11 June 2021), online; Mario Polèse, “Quebec’s Bill 21: Is there room for more than one view of religion in Canada?” Policy Options (4 August 2021), online; Saleema Nawaz, “Time to grow up and rethink the notwithstanding clause,” Montreal Gazette (21 June 2021), online[/mfn]. Prominent by its absence is a discussion of the role of Parliament5To be fair, Nawaz (see previous footnote) does say that Prime Minister Justin Trudeau should “push back”, but gives no indication of how he is to do so..

A role for Parliament

Parliament could take on a stronger role in governing the use of the notwithstanding clause. It’s both large-C hard-law constitutionally possible, and small-c, soft-law, constitutionally appropriate.

Where does the Constitutional power come from? Through Parliament’s legislative power to control the advice the Privy Council gives to the Queen, GG, and LG. They can use this power to prevent a bill that invokes s 33 receiving royal assent, except in appropriate circumstances. Parliament can also make it difficult for future Parliaments to abandon this structure by creative use of manner and form requirements.

And why is this okay? Because preventing the provinces from executing injustices was the very purpose of the federal veto powers; and because the Charter is special. If you’re convinced, stop here. If you want to know more about the legal machinery that makes this work, keep reading.

Parliament’s powers under the Constitution

In general, the Canadian constitution does not subordinate the provincial governments to the federal one6Reference re Secession of Quebec, [1998] 2 SCR 217 at para 58, citing Re the Initiative and Referendum Act, 1919 CanLII 426 (UK JCPC), [1919] A.C. 935 (P.C.), at 942; “The object of the [British North America Act] was neither to weld the Provinces into one, nor to subordinate Provincial Governments to a central authority, but to create a Federal Government in which they should all be represented, entrusted with the exclusive administration of affairs in which they had a common interest, each Province retaining its independence and autonomy”: The Liquidators of the Maritime Bank of Canada v New Brunswick (Receiver General) [1892] UKPC 34, at 3. The primary exception is the doctrine of paramountcy. The breadth of federal and provincial powers makes many matters have both a federal and provincial aspect to them; paramountcy means the provincial will must yield. A second exception comes through the “veto powers”. These powers are contained in ss 55-57 & 90 of the Constitution Act, 1867.

Section 55 provides the general rules for royal assent to a Parliamentary bill. The overall scheme is to create a double veto, one held by the GG, one by the Queen in Council (QiC). When royal assent is sought, the GG has three (and only three!7The Governor General cannot partially assent and partially not; nor can they assent with modifications; nor can they change their mind later: GV La Forest, “Disallowance and Reservation of Provincial Legislation” (Department of Justice, Canada, 1955) options:

  1. assent;
  2. withhold assent (i.e. veto8Gallant v R, [1949] 93 CCC 237, 242-243 (PEISC));
  3. reserve assent

The GG decides which option to take “according to his Discretion, but subject to the Provisions of this Act and to Her Majesty’s instructions.”

If the GG assents or reserves assent to a bill, then the QiC can still veto it (ss 56-57). The difference between assent and reservation is what happens in the interim: if the GG assents, the law operates unless and until the QiC disallows it (vetoes it); if the GG reserves assent, the bill does not become law unless and until the QiC assents.

These powers affect federal-provincial relations due to s 90. Section 90 extends ss. 55-57 to the provinces, replacing “Governor General” with “Lieutenant Governor” and “Queen” with “Governor General”. This means the GG can provide instructions to the LGs regarding when royal assent is to be given, withheld, or reserved to provincial bills; and that the Governor General in Council (GGiC) can disallow a provincial bill.

Making use of these powers

Scholars have previously noted these powers could be used to cabin use of s 33. Right after patriation in 1982, McGill Professor Stephen A. Scott proposed the federal government alter the Instructions and Letters Patent for the GG and the LGs to require them to “refuse Her Majesty’s assent” to any bill invoking s 33.9“Entrenchment by Executive Action.” SCLR 4: 303 He convincingly argues that so altering the Letters Patent and Instructions would preclude legislation invoking s 33 from being granted royal assent.

His approach has two characteristics that could be features or bugs, depending on one’s perspective. First, while these Instructions are active, it would be essentially impossible to use s 33. If there are rightful uses of s 33, it would prevent these uses. Second, as proposed by Scott, the alterations to the Letters Patent and the Instructions are to be accomplished by executive action. Executive action is a double-edged sword; it allows matters to be accomplished swiftly, but also for them to be undone swiftly.

In my view, both of these characteristics are flaws. I see some possible uses of s 33 as rightful. I also see the lack of entrenchment as a flaw. Without it, Parliament could readily use s 33 wrongfully simply by altering the instructions and cabinet may be vulnerable to provincial political pressure to revoke the instructions.

Rightful uses of s 33

As I see it, the rightful uses of s 33 reflect the differing roles and competencies of the judiciary and the legislature. These differences in roles and competencies create three categories of reason for a rightful use of s 33 (that I can see): substantive, procedural, and remedial.

The canonical reason for invoking s 33 is substantive. One might object to a judicial decision (relevantly for s 33) either because the court ascribed too broad a scope to a right in ss 2 & 7-15 or because it undervalued the justification for infringing that right in the s 1 analysis. In my view, courts appear more institutionally competent than legislatures to determine the scope of a right, so it is difficult to see how a legislature could rightfully invoke s 33 in the former context. Courts, however, may be less competent at determining whether an infringement is justified. For example, it may be difficult for courts to understand the fiscal or practical impact of a seemingly less impairing solution. Moreover, the trial process may not lead to the best evidence being adduced or being best handled by the judge. Trial judges can err in the assessment of evidence10credibility determinations are a common example, albeit one generally not relevant to the justification analysis, without their errors being palpable or overriding.11Canada (Attorney General) v. Bedford, 2013 SCC 72 at para 48

There are also possible procedural reasons for invoking s 33. As Prof. Gerard Kennedy argued recently, it could be rightful for governments to invoke s 33 to explicitly permit vaccination mandates by public bodies. Courts may or may not find such a mandate an infringement of s 7 and may or may not find the infringement justified under s 1. I expect courts would find an infringement and generally find the infringement justified. But, each public body would face its own litigation risk and litigation cost. As Kennedy argues, the “cost, delay, and stress are themselves disincentives to act”, even if the public body thinks it will probably win. Invoking s 33 in this context allows for legal rights to be clarified ex ante by the legislature rather than ex post by the courts.

A third reason is at present theoretical, but was advanced by Côté and Brown JJ in their dissent in Ontario (Attorney General) v G, 2020 SCC 38. They argue that s 33 provides an alternative to courts suspending a declaration of invalidity12at paras 240-241 (that is, finding legislation violated a Charter right but refraining from striking down the legislation immediately). Without making any comment on G, I observe that the question of how long to suspend a declaration puts courts in an awkward position. This position is even more invidious when the legislature fails to act in the time afforded it and comes back like Oliver Twist asking “please sir, could I have some more [time]”?13This does happen: see i.a., British Columbia Civil Liberties Association v Canada (Attorney General), 2019 BCCA 219; 2019 BCCA 233) A better approach would be for the court to provide a minimum of time, and if the legislature does not act sufficiently swiftly, the legislature can fall back on invoking s 33. In so doing, the political cost of inaction falls where it ought to: on the dilatory legislature.

Having said that I see it being possible that s 33 could be rightfully invoked is not to say that s 33 generally is rightfully invoked, or that it ought often to be invoked. At present, there are strong arguments that a clear norm against invoking s 33 is better than a context-specific standard. Most attempted uses probably do not fit into the above categories, and a general consensus that uses are wrongful increases the political cost of such a wrongful use. This analysis changes if there is a method to distinguish rightful and wrongful uses outside of “the public discourse as mediated through electoral politics”.

The question then becomes: how, and who, can distinguish between rightful and wrongful usages? The current answer, is, essentially, “the electorate”; Scott’s answer is “no one — so we should prevent them all”. I discuss some alternative answers below.

Who decides

Who can decide when a usage of s 33 is rightful? Who can be disinterested and exercise good judgment? The question is quixotic: the traditional answer to such a question is “a judge”, and yet s 33 is meant to provide a route out from judicial supremacy.

One alternative14mentioned in passing by Prof. Allan Hutchinson in a Globe and Mail article, is to require a two-thirds majority in the legislature that passes a bill. This addresses one problem with the current situation: as it stands, a simple majority in a legislature is enough to invoke s 33, but, due to Canada’s existing majoritarian electoral system, a simple majority of the legislature will frequently not represent a majority of the electorate. In thin political majorities, such a rule may also require getting the support of an opposition party, which will curb the most self-serving excesses.

A related alternative is to require the support of a majority of the opposition of the relevant legislature. This would again curb some self-serving excesses.15Unless the majority is sufficiently strong (3/4) and brazen as to have some of its own members to sit as members of the opposition to gain the majority of the “opposition” vote. It would not, however, prevent a true tyranny of the majority, when a majority group would like to score political points against a minority group.

A third alternative is to bring in another order of government: that is, for the provinces, to require parliamentary approval. It’d be the legal equivalent of a two-key system; both levels must turn their keys to “approve” before the Charter‘s “nuclear option” is activated. When control of Parliament and the relevant provincial legislature is held by different parties, this alternative has the benefits of preventing self-serving uses of s 33. When the parties are aligned, it may help prevent a tyranny of the majority for more parochial concerns: that is, matters that are of great local consternation but that consternation is not shared more broadly. Regardless of party alignment, multiple levels of government will generally have misaligned electoral clocks. This creates a further control. Certain times in the electoral cycle may make turning the key more likely — for some issues, near an election; for others, far from it. But if the cycles aren’t aligned, then these cyclical impulses can be resisted.16The assumption I make here is that a cyclical use is not a rightful use. If one thinks using s 33 should be a Big Deal, then a fleeting preference probably is not a rightful reason.

There are, however, flip-sides to these benefits. Requiring parliamentary approval of s 33 may allow provincial governments to force issues onto the national agenda as a wedge between political parties. For example, a separatist party in charge of Quebec might put forward legislation discriminating in favour of the French language in advance of a federal election, in the hopes of improving the prospects for the Bloc. This could also elevate what was a mere parochial hobbyhorse into the national discourse and so expand the number of jurisdictions where s 33 is invoked. And, of course, it may be that the federal government is unduly unresponsive to provincial needs.

No solution is ironclad. A sufficiently strong combination of bad governments can act badly. There is no adequate replacement for good government.

In my view, the best compromise is probably to combine these alternatives, such that a double (i.e. two-key) supermajority (i.e. many members of the legislature support it) is required for any use of s 33. Such a requirement would, of necessity, differ for provincial vs federal bills. In either case, though, the lynchpin for preventing a misuse of s 33 is to refuse royal assent.

Implementing these controls has three steps for provincial bills. First, have17This word is purposefully vague. I discuss the mechanism for this below the GGiC instruct the LG:

  • To use their Discretion on any bill that does not invoke s 33
  • To refuse assent to any bill invoking s 33 unless the bill garners support of at least 2/3 of the provincial legislature at third reading.
  • To reserve assent to any bill invoking s 33 provided the bill garners support of at least 2/3 of the provincial legislature at third reading.

Second, have the GGiC act as follows:

  • Forebear from assenting or refusing assent to any reserved legislation prior to a vote of the House of Commons on a resolution calling for the GGiC to assent to the legislation
  • Grant royal assent to the bill only if at least 2/3 of the Members of the House support that resolution
  • Refuse royal assent to the bill if less than 2/3 of the Members of the House support that resolution

Third, in the event that legislation is reserved for the assent of the GGiC, that Parliament is dissolved, and that there is sufficient urgency to the legislation that it would not be in the public interest to wait for the next Parliament to address this matter by resolution, the GG may use their discretion after having received advice from the Privy Council.18This provision is made necessary by the aforementioned misalignment of the electoral clocks; it’s possible Parliament will not be in session when an urgent provincial use of s 33 occurs.

For federal bills, there is no second order of government to turn to for a disinterested appraisal. Instead, the double supermajority would of necessity be of the House and of the Senate. To set this up, the Queen would need to instruct the GG:

  • To not grant royal assent to any bill invoking s 33 unless that bill garners support of at least 2/3 of the House of Commons at third reading there and at least 2/3 of the Senate at third reading there

I’ve left it vague, thus far, how it is that Parliament could make it so that the Queen and the GG act (and keep acting) as described here. That’s the topic of the next section.

Entrenchment

To prevent a future parliament from circumventing these requirements by changing the instructions again, the instructions need to be “entrenched”. Such entrenchment can be achieved in two steps. First, use legislation to require the appropriate executive action. Second, use manner and form requirements to protect the legislation.

Directory legislation

The key to ensuring the LGs and GG do as described above is to use legislation to require appropriate actions by the Privy Council. Here, that entails prescribing the advice the Privy Council is to give the GG and the Queen. Specifically, the GG and Queen should be advised to instruct (respectively19The Letters Patent Constituting the Office of the Governor General
“authorize and empower [the] Governor General, with with the advice of
[the Queen’s] Privy Council for Canada or of any members thereof or
individually, as the case requires, to exercise all powers and
authorities lawfully belonging to [the Queen] in respect of
Canada”.
) the LGs and GG to follow the scheme set out above for royal assent.

Prescribing the advice of the Privy Council will be effective, for three reasons. First, although formally the Queen and GG retain discretion on what instructions to give their respective charges, as a practical matter they issue instructions on the advice of the Privy Council. Second, changing the instructions and letters patent20and the Privy Council advising that change is constitutionally possible without a constitutional amendment21because it does not affect the “office of the Queen” under s 41(a) of the Constitution Act, 1982 (which is subject to the unanimity amending procedure). For example, the Letters Patent have been amended a few times, most prominently in 1947, but more recently in 1988 (to let the GG bestow “armorial bearings”). Third, the advice itself is likely to be judicially reviewable, such that the courts can supervise the consistency of a member of the Privy Council’s advice with legislation.22See, e.g., R (on the application of Miller) v The Prime Minister, [2019] UKSC 41

Parliament can readily prescribe the advice of the Privy Council through statute. One part of the statute would be a schedule with the relevant instructions and Letters Patent. The other part would direct that the Privy Council “shall” advise the GG (or Queen, as appropriate) to issue the instructions and letters patent in the schedule.23Parliament could batten down any escape hatches by also directing that members of the Privy Council “shall not” advise the GG (or Queen, as appropriate) to remove these Instructions or Letters Patent, and by declaring, “for greater certainty”, that these provisions are justiciable, thus ensuring judicial oversight in case the Privy Council gives advice contrary to the statute.

Constitutional complications

Some might argue such legislation is outside Parliament’s competence. I don’t see any such argument as likely to succeed, but I’ll try and set the two most plausible out below. Feel free to skip this section if you’re not keen on federalism.

One argument against such legislation is that prescribing the advice the Privy Council shall give the GG or the Queen is truly an alteration of the office of the GG and/or LG, both of which can only be accomplished with the unanimous approval of Parliament and the the provincial legislatures24Constitution Act, 1982, s 41(a).

The issue with this argument is that the Privy Council could clearly give advice to amend the instructions as it stands, without any legislation. This, as mentioned above, has happened before. The Privy Council did not amend the Constitution in 1988 by advising the Queen to permit the GG to bestow armorial bearings. Rather, the Queen exercised a prerogative she already had according to normal lower-case-c constitutional principles of advice from her advisors. If the Privy Council giving this advice is not a constitutional amendment, it is hard to see how legislation directing this advice — from the legislature to whom the Privy Council is responsible — could be a constitutional amendment. It would be a constitutional amendment to remove the powers of reservation and disallowance, to remove the necessity of royal assent, or to change who can give royal assent. Changing the advice the monarchic authorities receive when choosing how to exercise their powers is not an amendment. After all, the monarchic authorities can, as a matter of upper-case-c Constitutional law, ignore that advice.

A second plausible argument is that this legislation, at least as it concerns the advice to the GG about the instructions to the LGs, is ultra vires Parliament. On this argument, the purpose and effect of this legislation is to govern the use of the notwithstanding clause by the provinces, and so this legislation is truly a matter of property and civil rights in the province (s 92(13)) or otherwise a matter “of a merely local or private Nature in the Province” (s 92(16)). In the same way that Upper Churchill25Reference re Upper Churchill Water Rights Reversion Act, [1984] 1 SCR 297 found Newfoundland’s26the legislation predates the province’s renaming to “Newfoundland and Labrador” legislation concerning Churchill Falls in Labrador was not within the competence of Newfoundland because it was really about a contract with a Quebec choice of laws clause, such would really be about provincial decisions, not federal.

There are three ripostes. The first is that Upper Churchill is one of the most risibly wrongly decided cases. The principle of legislative supremacy means that all legislative powers must be held by some legislature27“[The object of the BNA Act] was accomplished by distributing, between the Dominion and the Provinces, all powers executive and legislative”: The Liquidators of the Maritime Bank of Canada v New Brunswick (Receiver General) [1892] UKPC 34, at 4] (or combination thereof, when so required by the Constitution Act, 1982); the power to expropriate cannot be destroyed by any executive action, much less the action of a provincial corporation. If the Newfoundland legislature lacked the legislative competence to expropriate the property in Upper Churchill28See Upper Churchill at 332-335, then who had it? Quebec, because of a choice of law clause in a contract with a Newfoundland corporation? Canada, because it was a matter of interprovincial trade and commerce? Or do electricity contracts between Newfoundland and Quebec constitutionalize hydro dams?

Even if one accepts the Upper Churchill approach to pith and substance, this argument would fail to clear the hurdle that the LG is ultimately responsible to Parliament, not the provincial legislatures. The LG is appointed by and instructed by the GG, holds office during the pleasure of the GG, and is paid by Parliament29Constitution Act, 1867, s 55, 58-60, 90. The first point here is the most important, since the power to instruct is in issue. Section 58 refers specifically to the “Governor General in Council“, which is defined to mean “the Governor General acting by and with the Advice of the Queen’s Privy Council for Canada”30Constitution Act, 1867, ss 13, 58. It is implausible that any legislature other than Parliament could direct the actions of the Privy Council.

A third possible response is more dubious. That would be to say that it is generally within Parliament’s power to prevent the use of the notwithstanding clause because it is a matter properly classed as within the peace, order, and good government, specifically the “national concern” branch. Framed in the language of Re GGPPA31(which famously held that setting “minimum national standards of greenhouse gas price stringency to reduce greenhouse gas emissions” was a matter of national concern: References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 at para 4), the national concern would be to create minimum national standards of universal Charter rights.

This view may be attractive to those with strong nationalist or strong rights universalist views. Many rights in the Charter were inspired by the Universal Declaration of Human Rights32see, e.g., Lorraine E Weinrib, “The Canadian Charter’s Override Clause: Lessons for Israel” (2016) 49:1 Israel LR 67, 77 and others were specifically included as part of a project devoted to national unity.33Peter Hogg, “Federalism Fights the Charter of Rights: Essays in
Honour of Donald Smiley” in David Shugarman and Reginald Whitaker, eds, Federalism and Political Community (UTP, 1989), 249, 249
Preventing the abrogation of universal rights that were constitutionalized specifically in an attempt to forge a national identity that transcended the provinces34See, e.g., Donald Ipperciel, “Where did Trudeau go wrong? On the Question of Nationalism and Charter Patriotism in Canada” (2008) 17:2 Constitutional Forum 39, 41; Richard Simeon, “An Overview of the Trudeau Constitutional Proposals” (1981) 19:3 Alberta Law Review 391, 395 might seem like it ought to be a matter of national concern.

The difficulty with this riposte is that the test for a national concern power is probably not met. Even if one says that uses of the notwithstanding clause is specific and identifiable35see Re GGPPA at para 151, it is difficult to understand how it the provinces would themselves be constitutionally incapable36Re GGPPA at para 152 of preventing wrongful uses of the notwithstanding clause.37The provinces obviously could not do so through instructions to the LG, but could do so through the advice the LG receives from the provincial Executive Council. And of course, the provinces could just not use s 33. Nor are there the “grave extraprovincial consequences”38Re GGPPA at para 152 if one province misuses the notwithstanding clause, unless one takes the strongest view of universal rights (that a harm to one person’s rights is a harm to all person’s rights) or an exceptionally strong view of the gravity of shaping a national identity through law.

In sum, so long as Parliament acts through directions to the Privy Council to exercise powers that the Privy Council alone has (including the giving of advice), Parliament is probably within its legislative competency. If it tried to eliminate uses of the notwithstanding clause through paramountcy alone, then it would probably be stopped by the limits of the national concern branch of power.

Manner and Form

If the first step was to entrench the instructions, the second is to entrench the legislation. Entrenching legislation, short of constitutional amendment, is difficult. The doctrine of parliamentary supremacy means that legislation enacted by one Parliament that purports to restrict the substantive actions of a future Parliament will be ineffective.39Reference Re Canada Assistance Plan (B.C.), [1991] 2 SCR 525 [CAP Reference]at 563-564. It is, however, possible to make legislation more difficult to amend by imposing manner and form requirements. As Mercure40R v Mercure, 1988 CanLII 107 found, “[a] basic provision regarding the manner in which a legislature must enact laws cannot be ignored” (277).

In this context, entrenchment would inhibit an end-run by Parliament around the double supermajority requirement outlined above. It would also free Parliament from much provincial political pressure to revoke the legislation.

Imposing any such manner and form requirement then reaches three hurdles. The first is making it obvious enough — courts are often chary to find a manner and form requirement41see, e.g., Greater Vancouver Regional District v British Columbia (Attorney General), 2011 BCCA 345; CAP Reference at 562-63. But this chariness amounts more to a clear statement rule than a substantive rule42CAP Reference at 563. Stating a provision is meant to be a manner and form requirement should suffice.

The second hurdle is to protect the protective legislation from itself being changed. This lesson was comedically demonstrated by the Taxpayer Protection Act, which purported to prevent Ontario from levying any new taxes without a referendum. Unfortunately for the proponents of that Act, the Taxpayer Protection Act itself could be amended without a referendum43See Canadian Taxpayers Federation v. Ontario (Minister of Finance) 2004 CanLII 48177 (ON SC). The solution, then, is for manner and form legislation to impose manner and form requirements on its own amendment. That is, for the manner and form legislation to be self-entrenching.

The third hurdle is that certain requirements dictating procedure may slip the line into a substantive limit and so be ineffective. That is the subject of the next section.

Slipping into substance with manner and form requirements

The boundary between imposing procedural requirements that are treated as effective manner and form requirements and imposing procedural requirements that are not so treated is difficult to make out. I see at least two possible principles on the case law: that the manner and form requirement have a discernible value; or that the manner and form requirement not make amendment practically impossible.44The issues raised in this section have been a matter of long and ongoing debate from Dicey onwards. Today, the debate is rejoined in Gordon, Michael. Parliamentary Sovereignty in the UK Constitution: Process, Politics and Democracy (Oxford: Hart Publishing, 2015), and a series of reviews around it, including Lakin, Stuart. “The Manner and Form Theory of Parliamentary Sovereignty: A Nelson’s Eye View of the UK Constitution?” (2018) 38:1 Oxf J Leg Stud 168; Goldsworthy, Jeffrey. “The ‘manner and form’ theory of parliamentary sovereignty” (2021) Public Law 586; Gordon, Michael. “The Manner and Form Theory of Parliamentary Sovereignty: A Response to Jeffrey Goldsworthy” (2021) Public Law 603. I’m not going to get too deep into this debate. To be clear, at this point I am only asking which procedural requirements courts would enforce, not which would be proper for Parliament to implement. I return to that second question later.

That such a boundary exists can be simply demonstrated. Consider legislation that required at least five years between first and second reading of any bill. Procedural? Yes. Effective? No. A future Parliament would be unable to legislate (in peacetime) without infringing s 4(1) of the Charter45“(1) No House of Commons and no legislative assembly shall continue for longer than five years from the date fixed for the return of the writs of a general election of its members.” 4(2) provides an exception for times of war. No court would enforce such a requirement: they would say it was not a manner and form requirement at all, but rather a fetter on the substance of future laws.46See CAP Reference at 560. Although the CAP Reference itself concerned only money bills, which it acknowledges have special features, the limit is stated broadly: “A restraint on the Executive in the introduction of legislation is a fetter on the sovereignty of Parliament itself.” Since Parliament cannot impose substantive fetters on itself, such a provision would be ineffective. In contrast, if the requirement was merely for 5 days between first and second reading, a court would surely uphold it.

This example is consistent with either principle I suggested above for characterizing a procedural requirement as a substantive fetter: there is no practical purpose to so long a wait; and it makes legislative amendment practically impossible. Interestingly, in contrast to characterization in the division of powers setting, courts probably can ignore the purpose of imposing a manner and form requirement: a sufficiently onerous requirement that was imposed with no intention of fettering the substance of future decision-making should still be unenforceable; similarly, a not-onerous requirement that the proponents had hoped would deter changes to the law would be enforceable.

Focusing purely on the effect reveals that essentially any procedural requirement is enforceable provided it is not self-entrenching. A law that required any new bill, other than one that amended this law, to be announced on the planet Jupiter would be readily enforceable, since the legislature could amend that (very silly) law. Practically, the only imposition on the legislature is that it has to pass two bills rather than one; this is not unduly onerous.

Building these principles into examples, some procedural requirements are clearly manner and form requirements; others are clearly fetters on substantive matters; on others still, reasonable minds might disagree.

In my view, the following would clearly be manner and form requirements:

  • That relevant bills be published in both English & French (as in Mercure)
  • That relevant bills be published in other commonly-read languages in Canada
  • That relevant bills clearly state they intend to amend or operate notwithstanding existing legislation47Such as the notwithstanding clause in s 2 of the Bill of Rights
  • That relevant bills be introduced by a specific Minister
  • That relevant bills have a specific title and short title
  • That an explanation of the constitutionality of a bill be tabled with the bill
  • That at least 1-90 days elapse between first and second reading or between second and third reading of relevant bills
  • That the government consult with relevant Indigenous groups before amending a certain law48Mikisew Cree First Nation v Canada (Governor General in Council), 2018 SCC 40 at paras 51 (per Karakatsanis J for Wagner CJ and Gascon J) and 167 (per Rowe J for Moldaver and Côté JJ); it refers to Nisga’a Final Agreement at c. 11 paras 30-31 (PDF p 170) as implemented in Nisga’a Final Agreement Act, RSBC 1999, c 2, s 3.
  • That the government consult with non-Indigenous groups before amending a law.49Greater Vancouver Regional District v British Columbia (Attorney General), 2011 BCCA 345 at para 42
  • That the legislature have a sufficient quorum during the vote50See Goldsworthy, Jeffrey. “The ‘manner and form’ theory of parliamentary sovereignty” (2021) Public Law 586, 587.
  • The a majority be achieved among members of a legislature rather than merely of members present51Ibid

In my view, the following are, also clearly, not manner and form requirements (provided the requirements are self-entrenched):

  • That at least 4 years elapse between first and second reading or between second and third reading of relevant bills
  • That any relevant bill be passed unanimously
  • That any relevant bill must not be introduced by government ministers52See CAP Reference at 560. Although the CAP Reference itself concerned only money bills, which it acknowledges have special features, the limit is stated broadly: “A restraint on the Executive in the introduction of legislation is a fetter on the sovereignty of Parliament itself.”

Some other requirements are more complicated and merit further discussion.

Supermajority requirements

Some authority clearly supports supermajority requirements. For example, the Privy Council approved of a self-entrenched supermajority requirement in Ranasinghe53The Bribery Commissioner v Pederick Ranasinghe (Ceylon), [1964] UKPC 20. Ranasinghe concerned a requirement in the Ceylon Constitution that any amendment to it receive the support of “not less than two-thirds of the whole number of Members of the House”.544 The Ceylon Legislature then passed a bill that did not have two-thirds support, and that received Royal Assent, but which contradicted the Constitution. The Privy Council found this legislation invalid for failing to comply with the manner and form requirements imposed in the Constitution.557 This holding from Ranasinghe was mentioned with approval in Mercure, and so might be thought to be compelling in Canadian law.56Mercure refers to Ranasinghe as “clearly [stating]” the law on manner and form rules, and opined that “the principle goes well beyond the confines of that case”, and referred with approval to the suggestion that it “applied even to the United Kingdom Parliament” (277-278).

There are two reasons to doubt the strength of Ranasinghe for supporting a supermajority requirement here. First, Ranasinghe notes the very grant of power to the Ceylon Legislature was conditioned on the two-thirds majority requirement.57“[T]he proposition which is not acceptable is that a legislature, once established, has some inherent power derived from the mere fact of its establishment to make a valid law by the resolution of a bare majority which its own constituent instrument has said shall not be a valid law unless made by a different type of majority or by a different legislative process”: 6 Mercure, similarly, notes the importance of a “constituent instrument” in applying a manner and form requirement58“For my part, I cannot accept that in a nation founded on the rule of law, a legislature is free to ignore the law in its constituent instrument prescribing the manner and form in which legislation must be enacted. That has always been the law in this country and in the Commonwealth generally”: 279. It is one thing for a Parliament to purport to give away a power it previously held — this may offend Parliamentary supremacy; it is another for Parliament to never have the power in the first place. Second, both Ranasinghe and Mercure predate the CAP Reference, which is the clearest source of authority that some procedural requirement may be treated as attempts to substantively fetter government.

Finally, the strength of a supermajority requirement may be important. Ranasinghe concerned a two-thirds voting requirement, the enforcement of which it saw as an entitlement of the minority.597 If a supermajority requirement is possible, one at least as strong as a two-thirds majority requirement is possible. There may, however, be limits. At least in my view, a unanimity requirement could be tantamount to an absolute bar in a democracy. Uncertainty lies between these two markers, but asymmetrically: I would expect a 4/5 majority requirement to be upheld with as much confidence as a 2/3 majority requirement, but a 19/20 majority requirement to be much more likely to be upheld than a unanimity requirement.

Referendum requirements

By contrast, referendum requirements are relatively more clearly supportable in the case law. The leading authorities concerning referendum requirements are Trethowan, of the JCPC60The Attorney General for New South Wales v. Trethowan, [1932] AC 526; Ranasinghe cites and approves of Trethowan, and Mercure61To be clear, by a referendum requirement I contemplate one that functions as a condition to legislative action, not one that functions as an alternative to the legislative assembly. The latter may in fact be possible, despite The Initiative and Referendum Act (Re), [1919] AC 935. In this case, the Privy Council held a legislation-by-referendum scheme constitutionally impermissible because it affected the “office of the Lieutenant Governor”. The scheme plausibly affected the office in three ways: the scheme required the LG “to submit a proposed law to a body of voters totally distinct from the Legislature of which he is the constitutional head”; it “renders him powerless to prevent its becoming an actual law if approved by a majority of these voters” (24); and legislation was to be “deemed repealed” after a referendum vote, without any activity of the LG. It is unclear if these three aspects each individually were fatal to the scheme. The latter two aspects are the more obviously fatal, but also could have been avoided with better drafting. It is thus unclear whether that first point — submitting laws to a body of voters distinct from voters — is itself constitutionally suspect. Trethowan concerned a self-entrenched referendum clause inserted into the New South Wales Constitution Act, 1902 through ordinary legislation in 1929. A year later, “the Government then in power were anxious to get rid of this [clause]” and passed to remove it. The Privy Council found this legislation invalid because the government had not complied with the referendum requirement. Mercure, less directly, appears to take the same position, quoting with approval the view of “Sir Ivor Jennings, one of the great constitutional lawyers of this century” that a self-entrenched referendum provision would be enforceable62at 278.

Some uncertainty may yet remain. As with supermajority clauses, one reason for uncertainty is that the supporting cases predate the CAP Reference. A second, as above, is that the legislation at issue in Trethowan was constitutional. This reason has less force, however, because the referendum clause in Trethowan was inserted through ordinary legislation, not legislation that in fact constituted the Parliament. Trethowan, despite relating to a “Constitution Act”, does not support special treatment of manner and form requirements in constituting legislation.

Involving a different order of government

It is unclear whether involving a different order of government would be a possible manner and form requirement. Read directly Nova Scotia Interdelegation63Attorney General of Nova Scotia v Attorney General of Canada, [1951] SCR 31 says that Parliament cannot delegate its powers to a provincial legislature or worse, divest itself of such powers. It does not, however say that Parliament cannot impose a manner and form requirement that involves another order of government on the exercise of powers that remain its own. The power to make law and the power to veto law are obviously distinct. Re Parliament64Re: Authority of Parliament in relation to the Upper House, [1980] 1 SCR 54, however, treats Nova Scotia Interdelegation as standing for a broader proposition:

The selection of senators by a provincial legislature or by the Lieutenant Governor of a province would involve an indirect participation by the provinces in the enactment of federal legislation and is contrary to the reasoning of this Court in the Lord Nelson Hotel case previously cited.6577

On this broader read of Nova Scotia Interdelegation, even an “indirect” involvement of one order of government in the law-making process of another is constitutionally forbidden. This broader read would appear to prevent a manner and form requirement that required provincial assent to an amendment.

Delay requirements

Above, I noted that the validity of delay requirements probably depends on the length of the delay. I think it clear that a mandatory 90-day period between first and second or second and third reading would be upheld. This length of time could be seen to ensure effective Parliamentary and public scrutiny of legislation. As mentioned above, I think it also clear that an overly long delay (say, on the order of four years) would be found impermissible because it would functionally prevent any peacetime Parliament from amending the legislation.

Between these two poles again rises uncertainty. If the principle governing manner and form requirements is that it must be practically possible for a future Parliament to accomplish the amendment, then a longer timeline would seem acceptable. Requirements on the order of two or three years would be acceptable on that principle. If the principle is instead that the manner and form requirement must serve a plausible good government purpose, then only a shorter timeline would seem acceptable: there are diminishing returns for greater delay. After all, how can it be that an entire federal election can be packed into less than three months66The longest Canadian election campaign was the 2015 Federal Election, which ran for 78 days, but one piece of legislation needs greater time to solicit opinion?

Which requirements

Having identified some manner and form requirements that appear possible, the next question is to identify the ones that seem preferable. This process is easy: there is no need to choose one, when one could instead choose “all”. Here’s one option:

  • (1) “Relevant bill” is defined as any bill in Parliament relating to the advice the Governor in Council gives the Queen or Governor General relating to Letters Patent, Instructions, or Commissions of the Governor General or Lieutenant Governors of the Provinces or that purports to amend or affect the operation of this legislation.
  • (2) Any legislation resulting from a “relevant bill” is valid only if it fulfills the following manner and form requirements
    • The bill must be introduced to the House by the Prime Minister
    • At least 90 days must elapse between first and second reading of the bill in the House
    • A two thirds majority of members of the House (including those not present) must approve the bill at its third reading
    • A referendum of all Canadian electors concerning the bill must be held between the first and second reading of the bill in the Senate, and the majority of voting electors must be in favour of passing the bill
  • (3) For greater certainty, if any of these requirements are found not to be valid manner and form requirements, that requirement shall be severable from this Act as a whole, and remaining manner and form requirements shall be effective.
  • (4) For greater certainty, whether a bill is a relevant bill per s (1) and whether a relevant bill complies with the manner and form requirements set out in s (2) is justiciable.

Too plain for your taste? Here’s some spicier clauses:

  • The bill must be entitled “An Act to Allow the Violation of Canadians’ Rights
  • The bill must have the short title “Rights Violation Act
  • The referendum question shall be phrased as “Should it be easier for Parliament and the provinces to violate Canadians’ Charter rights, as proposed by {Bill Number} An Act to Allow the Violation of Canadians’ Rights“, with the answers of “yes” and “no”.

Inelegant? As a belt-and-suspenders-and-the-kitchen-sink. Effective? Probably.

The propriety of the thing

While the previous sections set out an argument for why this scheme would be hard-law, big-c Constitutional, there remains a question of whether it would be soft-law, small-c constitutional. Although there are multiple reasons why one might look askance at this scheme at first glance, at second and third it comes out okay. The questions of propriety relate to:

  1. Using the veto powers
  2. Gutting the notwithstanding clause
  3. Instructing the LG to do something that may contradict the advice the LG receives from the Executive Council of the province
  4. Imposing manner & form requirements that are intended to entrench existing policies and functionally, if not legally, bind the hands of future legislatures

All are plausible objections, but, in my view, neither alone nor together do they suggest the scheme ought not be pursued. I’ll discuss all four in the next couple of sections.

The veto powers

I see two possible objections to Parliament employing the veto powers. One is that they were never meant to be used except in extremis: they’re a hammer hidden behind “break in case of emergency” glass, not one that Parliament can get from Canadian Tire. The second is that, even if originally they were meant for more quotidian use, as the country has grown up and evolved, these powers have become vestigial clauses, the constitutional analogue of the appendix.

The history of the veto powers reveals the untruth of the first objection. This history is explained in detail in a 1955 report from the Canadian Department of Justice, penned by a certain G V La Forest.

The purpose of including these powers was not merely to be emergency powers to forestall some constitutional crisis. As La Forest describes it, the veto powers were seen as “necessary” by many of those who architected the BNA Act, in part to ensure that “no injustice shall be done [by a provincial legislature] without appeal”67La Forest at 6-8, and in part to provide Canada with means to ensure the national interest prevailed over more local interests68La Forest at 8-9. The problems foreseen by these constitutional engineers regarded the frequent or regular use of the power, or the misuse of a power by a party in control of the federal government to advance the electoral interests of the provincial version of the party69La Forest at 7-8. So, they may not be intended to be systematically or regularly used, but neither were they meant only for emergencies.

The practice also supports this description. Bills were disallowed not infrequently until perhaps 1911, then at most intermittently until the early 1940s, after which it has not been used.70See La Forest at 83-101 for a catalogue. As La Forest describes it, there were four primary reasons for invoking disallowance: (1) the legislation being outside provincial competence; the legislation conflicting with the policies or interests of (2) Canada or (3) the Empire; or (4) the legislation being contrary to sound principles of legislation, an abuse of power, or unjust, unwise or otherwise inexpedient71at 36. This likewise suggests it need not be a crisis to invoke the power, but it should not be used systematically.

The use of the reservation power followed a similar path: in the early days post-Confederation it was used often; in the early 1900s it was used intermittently; and it hasn’t been used since 1937.72See La Forest at 102-115 for a catalogue. When it was used, this power was generally used pursuant to instructions the federal government issued that largely mirror the reasons for disallowance (although at times the LGs have done so without instructions).

The judicial treatment of these powers also suggests they have a proper use outside emergency situations. As La Forest summarizes the jurisprudence, there are two poles. The strongest view of these powers was that provincial legislatures where constitutionally capable of passing unwise or unjust legislation precisely because of the power (and more, duty!) of the GG to disallow it.73La Forest at 20-21 The weaker view is that it could only be exercised when a provincial law encroaches on the rights of Parliament74La Forest at 21. The central view includes the possibility of using it to protect the national interest or national policies.75La Forest at 21-22

Turning from history to present day reveals the second question. Regardless of the historical propriety of invoking the veto powers, can they still be used rightly today or have they fallen into so-called “constitutional desuetude”?

Prof. Richard Albert sets out the desuetude argument against the veto powers.76Constitutional Amendment by Constitutional Desuetude” (2014) 62:3 Am J Comp Law 641. As he describes it, desuetude is a condition wherein a constitutional power that could previously be rightly invoked (i.e. invoked with legitimacy) later cannot.77at 651 He suggests seven factors to identify it:78at 674-75

First, a constitutional reordering occurs informally as a result of the sustained nonuse of an entrenched constitutional provision. Second, that constitutional provision is expressly repudiated by political actors. Third, a new constitutional rule replaces the repudiated rule and thereafter sets the standard for future conduct by political actors. Fourth, the standard is seen as norm-generative; it exercises a binding effect that approximates a formal constitutional rule even though the new rule has developed informally. Fifth, political actors self-consciously follow the new standard, believing themselves bound by it and recognizing that their predecessors intentionally engineered that constitutional reordering. Sixth, the new constitutional rule permeates the elite conventional understanding of the constitution. Finally, despite the affirmation of a new rule that is contrary to the repudiated rule, the repudiated rule remains textually entrenched.

In his view, the veto powers meet these standards, because there has been a sufficient elite consensus in favour of nonuse. He distinguishes these powers from a reserve power, such as the GG’s power to dismiss the Prime Minister, in that the circumstances for their rightful exercise would arise at most rarely and so a long period of nonuse may not amount to any convention.79at 676-77 On the contrary, although at the time of his writing use of the notwithstanding clause might be seen as gauche, it was not seen as sufficiently illegitimate as to be against convention.

Albert makes a compelling case. But, as is generally the issue with reasoning from convention, there is always a question of the breadth of the precedent set by previous conduct. One could argue there are no circumstances in which the powers could rightly be used, because there are no circumstances since the 40s in which they have been used. Or, one could propose a narrower explanation for nonuse that preserves the possibility of its use in rare circumstances that come up sufficiently infrequently that no convention could develop. I would propose just such an explanation, in two parts.

The first part of the explanation for the disuse of the veto powers is that the old watertight compartments theory of the division of powers has been done away with. Rather than rely on its veto to block provincial laws that contravene national policy, the federal government can instead simply pass laws within its own competence and let those laws keep provincial policies in line.

The second is suggested in an early constitutional debate, to the force that the veto powers “might well be done away with by giving the courts power to adjudicate upon differences arising between the general and local governments”80La Forest at 10. This of course has largely come to pass and supports the prior point. When the federal government sees a provincial law it thinks lies outside provincial competence, it does not veto it, but rather fights it out in court. Moreover, post-Charter, the federal government need not stir itself to protect most constitutional liberties, similarly because the courts are — notwithstanding clause aside — supreme in this realm.

Comparing these explanations to the reasons for invoking the power set out by La Forest suggests that they capture almost all prior reasons for invoking the veto powers. What remains are some general categories — such as mere bad government — and some specific instances — such as invocations of the notwithstanding clause — where the explanations do not apply. For these remaining categories, the question is whether there have been sufficient instances of the category to support the convention. For mere bad government, probably, there have. It would therefore be improper (that is, small-c unconstitutional) for the federal government to veto merely bad provincial legislation.

But what about for the notwithstanding clause? It is unique for a number of reasons. First, it is relatively young, so conventions surrounding its use have yet to congeal. Second, provincial use is untrammeled by paramountcy and judicial control. Third, it has been used — to the point where a veto was possible — relatively few times.81Section 33 is invoked more often than it is actually used, in part because it sometimes became moot in the interim Wikipedia lists five, one of which is still within the disallowance period.82Whether a veto was not used for the others out of a sense of constitutional impropriety or out of a sense of political calculation is a question that I don’t have an answer to. Fourth, the notwithstanding clause was created partially as a sop to provincial interests; but vitally, the negotiation that produced it, and that otherwise amended the constitution, did not eliminate the federal veto. Would the federal government have agreed to the notwithstanding clause without having a veto in its back pocket? I do not know.83Someone else might! Would be curious if you do!

In sum, although most uses of the veto powers may now be improper, vetoing a use of the notwithstanding clause ought to still be up for debate. This window will not last forever; in another 10 or 20 years, if the notwithstanding clause continues to be used (especially in clearly wrongful ways) and if the federal government continues to forebear from vetoing it and if the lawyerly discourse continues to emphasize the veto powers’ desuetude… then the window will close. A convention will form that the only recourse to a provincial misuse of the notwithstanding clause is at the voting booth, not in the constitutional powers of Canada.

Gutting the notwithstanding clause

As adverted to above, the notwithstanding clause was in part created as a way of protecting provincial legislative power from the constitutional supremacy of the federally-appointed judiciary. An argument may go that invoking the veto powers would breach the spirit of the constitutional bargain, if not the words.

The answer to this is much as above. First, if the constitutional deal was to free the provinces from any federal control over matters related to the notwithstanding clause, then the provinces ought to have negotiated for the end of the veto powers. And second, the notwithstanding clause is at least as much about legislative supremacy as it is about provincial autonomy. The proposed scheme protects legislative supremacy by vesting power to control the clause’s use in legislative branch actors, not judicial branch actors.

Requiring federal oversight of the notwithstanding clause would also be in keeping with a thicker understanding of “democracy”. Canadians appear to generally think the federal government can do and ought to do more than it currently does. Giving the federal government a greater role in this will lead to greater concordance between what voters think they’re voting for, and what they’re actually voting for. That can only be good for democracy.84Does this argument have a natural limit? Perhaps not. Salt to taste. With regard to Charter rights in particular, the Trudeau Liberals’ branding as the “Party of the Charter” makes it more likely that people will think the Liberals ought to do something about it: put another way, among people who voted for the Liberals, this kind of action would probably be seen as rightful.

Contradictory instructions

This issue can be dealt with rather more simply than the previous. One concern some might have is that the proposed scheme would lead to instructions to the LG that may contradict the advice the LG receives from their provincial Executive Council. To the extent that a convention exists that the LG acts only on such advice, and acts in accordance with it except perhaps where the advice is unconstitutional (in the lower-case-c sense), then this scheme could lead to that convention being breached.

The answer to this is simple, but two-fold. First, that is the very design of royal assent as set out in the Constitution Act, 1867: to the extent this is a real problem, it is a problem with the power of reservation (and the existence of instructions to the LG). Second, to channel Coase85Coase’s original paper is far more interesting and thoughtful than the pat version that comes out in some law and economics into the constitutional realm: a wrong always has two parties. The perceived wrongful act here may as much be the Executive Council advising the LG to act not in accordance with their instructions from the GG as it is with the LG ignoring the advice and following the instructions. If one reads the true underlying convention as being that the LG should not act according to their personal discretion, then it is consistent with following either the Instructions or the Advice, so long as there is a hierarchy. The nature of these words suggests Instructions should trump advice.

Manner and Form

Concerns about manner and form requirements can also be readily stated: it is generally wrong for one Parliament to use procedural tricks to entrench its own policies when another Parliament might disagree. Without having done a full study of the matter, one might argue that there is even a constitutional convention against manner and form requirements, especially those that are self-protective. On this read, Canadian Taxpayers Federation is not a story of legislative drafters having missed a loophole, but rather a story of a legislature respecting a constitutional convention by maintaining that loophole.

This view is certainly plausible, but belies the earlier history that sparked cases like Ranasinghe and Trethowan. A different argument in this vein is one of constitutional desuetude: self-protective manner and form requirements once were acceptable but today are not. This also seems dubious, if only because the debate surrounding manner and form requirements has concerned their legality, not their propriety, with an elite consensus emerging in favour of legality. For example, Prof. Robin Elliot explained in a 1991 article that he had asked his students how they thought courts would react to a manner and form requirement imposed on the use of the notwithstanding clause; most thought the requirement would be effective, and Elliot opined that most Canadian lawyers would think the same.86Elliot, R. “Rethinking Manner and Form: From Parliamentary Sovereignty to Constitutional Values” (1991) 29 Osgoode Hall LJ 215, 217-218 Although Elliot himself was more sceptical87at 219, most students did not hold a sufficiently thick view of democracy that it would put those requirements into question. The students of 1991 seem likely to be the elites of today, and so it is hard to say that a consensus of impropriety has emerged.

Nonetheless, strong manner and form requirements are not common. Parliaments staring into electoral annihilation do not generally try and hamstring their successors by entrenching their own policies with such manner and form requirements.88Of course, policies can be entrenched in other ways, particularly financial: the past legislature could simply spend money and diminish the public purse; or the past legislature could enter contracts that are expensive to break without causing greater harm to the polity. If one is concerned about meaningful parliamentary sovereignty, it may be more important to consider economic fetters than legal ones. The only very-strong manner and form requirements in Canadian law appear to be the constitutional amending procedures imposed by the Constitution Act, 1982.

Rather than attempting to make blanket rules concerning either the requirements that are proper or the legislation on which any requirement can be imposed, I think the best approach would be to consider the intersection of the two: which procedural requirements are proper for which legislation?

So framed, we can see manner and form requirements as proper when they “enhance” parliamentary sovereignty by protecting it from its own ignorance or negligence89Goldsworthy, Jeffrey. “The ‘manner and form’ theory of parliamentary sovereignty” (2021) Public Law 586, 588; or maybe just when they serve a proportional and bona fide good government purpose.

Many of the least controversial procedural requirements (like short delay requirements, dealing with a single issue in a bill, etc.) would easily meet this test for most individual pieces of legislation, so long as they do not become systemically applied to most all legislation. Other possibly enforceable requirements are more dubious, for most all pieces of legislation. For example, even if a year long delay between first and second reading is plausible, there is no minimal public benefit to that delay that could not have been gained from a three-month delay.

Still others depend on the intersection of the bill and the requirement. For example, it would be improper to require the Minister of Seniors to introduce any changes to the Criminal Code. Legal, certainly; but it would serve no discernible public purpose. Similarly, a requirement that any bill that lowered taxes be entitled “An Act to Raise Taxes” would serve no rightful purpose. Again, legal – but wrong. Where does mandating that any act that makes it easier to use the notwithstanding clause the Rights Violation Act fall? Informative and proper or misleading and improper?

The more interesting intersections surround supermajority requirements and referendum requirements.

Supermajority requirements seem most likely to be proper when they are used to entrench broad minority rights protections for otherwise disadvantaged groups. That word “disadvantaged” is important: if a legislature wants to entrench protections for elites, that’s not cool. So, supermajority requirements against raising taxes on the rich: not on. Supermajority requirements to entrench a minimum income program: on like Donkey Kong.

Referendum requirements are uglier.90Goldsworthy thinks they’re always wrong: Goldsworthy, Jeffrey. “The ‘manner and form’ theory of parliamentary sovereignty” (2021) Public Law 586, 589 They are, however, relied on by governments to make certain calls, such as those related to whether to join or leave a parent state (Brexit, Quebec, Scotland, Newfoundland), and various attempts at electoral reform. These, however, were all optional — they were not mandated by statute. When would it be proper for a legislature to require the people decide directly?

One strong candidate would be situations where there is a direct conflict of interest between members of a legislature (qua members) and the people who elect them. So: MPs’ pay & pensions; application of Employment Equity legislation to members’ offices; and indeed, electoral reform. If any of these were protected by a referendum requirement, it would seem to make sense. But there’s an important difference between a conflict of a member’s private interest with that of their constituents and a member’s political interest. It seems to me proper to use referendums to protect against private interested fleecing of the public purse, but politically-interested fleecing should be properly policed by elections and opposed parties.

With all this in mind, many of the manner and form requirements I set out as legal options above would probably be proper. Among them, the broad protection offered to minority groups by raising the bar for invoking the notwithstanding clause would seem a rightful reason to entrench the legislation through a supermajority requirement. The referendum requirement, however, would probably be improper, since there is no good reason to subject an amendment to a referendum requirement.

Really TL;DR

Parliament, could, and should play a greater role in governing the use of the notwithstanding clause. It can, through legislation, direct the Privy Council to instruct the GG and LGs to withhold royal assent to legislation unless that legislation is passed through a double supermajority — 2/3s of both the provincial legislature and the House for provincial legislation; and 2/3s of both chambers for federal legislation. It could, and should, entrench these instructions through manner and form requirements that require, among other things, a supermajority to alter the directions to the Privy Council. This scheme is both legally possible as a matter of black letter constitutional law, and constitutionally possible as a matter of convention.

The notwithstanding clause remains young in constitutional time, and so the conventions surrounding it remain incomplete. Today, Parliament could rightly assert power over its use by the provinces, through its veto powers. This may be one of the only remaining rightful uses of the veto powers. But the propriety of such use of power will not last forever, and if Parliament fails to soon act, the window may close.