Confronting the Court, Reversing the Court: Understanding ‘Strong-Form’ Responses and Non-Compliance by Parliamentary Actors

The Canadian Charter of Rights allows for parliamentary non-compliance, as section 33 (the notwithstanding clause) allows Parliament to override a judicial determination of unconstitutionality for a 5-year renewable period. Subject to a simple majority vote that an invalidated statute continues in force ‘notwithstanding’ the position of the Court, the judicialization of politics appears rather weak in Canada. Thus, the Canadian combination of one-party majority governments in the Charter-era, and the relative ease of invoking section 33, does present an interesting case to consider whether legislative compliance is the default response on the part of parliamentary bodies to judicial invalidation. The Canadian experience, however, presents a puzzle – Parliament has never invoked the notwithstanding clause, suggesting that Parliament has accepted the Court’s interpretation of the Charter of Rights. This has led scholars such as Mark Tushnet to conclude that ‘weak-form’ review cannot address judicial supremacy. Indeed, this is suggested to occur despite the attempts in Canada, New Zealand, and the United Kingdom to decouple judicial review from judicial supremacy through instruments such as the notwithstanding clause, constrained judicial review, and constrained judicial remedy powers. This paper challenges this conclusion and uses the case of Canada to demonstrate how parliaments can engage in non-compliance without recourse to instruments such as section 33. Relying on Mathew Hall’s framework in the Nature of Supreme Court Power (Cambridge University Press), high courts must be conceptualized as ‘implementer-dependent’ institutions reliant on lower courts or parliaments to implement their rulings. Three variables are employed to assess the potential for legislative non-compliance in regard to invalidated statutes: whether the Supreme Court issued a clear decision without interpretive discretion; whether the Court is dependent on Parliament to implement its ruling through legislative amendments; and finally, the popularity of the judicial decision. As will be demonstrated, the clarity of the decision, the reliance on parliamentary implementation, and the popularity of the judicial decision can provide the conditions that allow for legislative non-compliance without recourse to instruments such as section 33. To evaluate judicial policy impact and the question of legislative non-compliance, several issues regulated by the Criminal Code of Canada are considered: safe-injection facilities in Canada v. PHS Community Services Society [2011]; prostitution reform in Bedford v. Canada [2013]; and, physician assisted death in Carter v. Canada [2015]. In addition, this paper considers the legislative responses introduced by the Harper and Trudeau governments that departed from the constitutional parameters established by the Supreme Court of Canada: Bill C-2, Respect for Communities Act (Harper); Bill C-36, Protection of Communities and Exploited Persons Act (Harper); and, Bill C-14, Medical Assistance in Dying (Harper and Trudeau). All three rulings involve moral issues where the Harper and Trudeau governments, to varying degrees, passed legislative responses that can be characterized as non-compliance. This paper will allow for a realistic assessment of policy impact for ‘implementer-dependent institutions’ such as the Supreme Court of Canada when confronted with unpopular judicial invalidations.