Infirmer Ford

Abstract

This article pursues three objectives. In the first part, it seeks to demonstrate that the decision rendered in Ford v. Québec (Attorney General) suffers from defects warranting its overruling, in accordance with the principles governing horizontal stare decisis. By failing to interpret section 33 of the Charter through a purposive analysis and instead relying exclusively on the provision’s text, the Supreme Court of Canada departed significantly from the interpretive precedents governing constitutional interpretation at the time.

In the second part, the article undertakes a constitutional interpretation of section 33 using the purposive framework. The text, the framers’ intent, the historical analysis, and, above all, the analysis of purpose and underlying constitutional principles lead to several conclusions. First, textual analysis requires Parliament or the legislatures to be as precise as possible when invoking the notwithstanding clause; they should avoid reliance on omnibus legislation and boilerplate override clauses. Second, an examination of the framers’ intent casts doubt on the thesis that section 33 was meant to be deployed mechanically—for example, in an omnibus statute—to shield an entire legislative scheme from all Charter provisions to which it applies. Third, an analysis of constitutional purpose and unwritten constitutional principles—beyond just parliamentary sovereignty—supports the conclusion that the override power should be exercised only in exceptional circumstances. While it enables pluralist constitutionalism and affirms parliamentary democracy, the notwithstanding clause must be exercised sparingly.

In the third part, the article considers what judicially enforceable limits on the exercise of the override power might be recognized in order to preserve its exceptional character. In other words, some form of review of the use of the notwithstanding clause must be acknowledged. The delineation of such limits ultimately falls to the court tasked with interpreting section 33. At a minimum, however, the legislature must be sufficiently precise in invoking the notwithstanding clause. It may also be required to have reasonable grounds to believe that a significant problem exists and, accordingly, to provide a reasonable justification for its recourse to the clause.