Could the “Honour of the Crown” Doctrine Prevent Misuse of the "Notwithstanding Clause" (s. 33 ) ?

Adam Strombergsson-de Nora and Rebecca Jaremko-Bromwich

The provincial governments of Ontario and Quebec recently deployed section 33 of the Canadian Charter of Rights and Freedoms to curtail labour rights and religious freedoms in ways that have surprised Canadian voters and lawyers alike. Criminal lawyers, with their particularly acute sensitivity to state overreach when Charter rights are concerned, have broadly expressed concerns about this type of state action. A popular view on the part of lay commentators suggests that s. 33 is only intended for use in dire circumstances, and sparingly. A plain reading of the Canadian constitution, however, discloses no constitutional basis for this contention.

In this blog post, which summarizes and excerpts a longer academic paper that we have co-authored that is pending publication, we suggest that the law doctrine of the honour of the Crown has potential to be deployed as a constraint on lawmakers’ power. This doctrine supplements courts’ view that policy decisions, or decisions respecting matters of state, are properly excluded from judicial—and constitutional—oversight. The promises included in the Canadian Charter and the ease with which elected officials may undermine them evoke the need for renewed interest in the honour of the Crown beyond first nations cases. Elected leaders cannot simply deploy s. 33 at will. The feudal concept of “honour” owed to and from the Crown animates the parliamentary sovereignty that section 33 of the Charter is designed to protect. Invoking this section in draft legislation does not necessarily allow the Crown to grant royal assent to otherwise-unconstitutional legislation. Courts may have to engage in a balancing process similar to the test for granting an injunction. Such a test provides a helpful legal argument to those seeking to constrain political leaders from tyranny and overreach.

The doctrine of the honour of the Crown offers potential legal protection against the executive’s overuse and bad faith use of the notwithstanding clause.. That protection derives from Courts’ historic willingness to hold the Crown to its word. Courts have guaranteed the Crown’s grants to subjects. These grants at first dealt primarily with property. Courts would protect a subject’s legitimate expectation to have and hold property granted from the Crown. These protections evolved as the Crown became removed from politics and direct influence over government. That evolution caused the doctrine to shift from one that protected feudal relationships between subject and Crown to protecting the Crown from the excesses of its servants. Netflix viewers will be familiar with this framework. The Crown’s separation from politics as the dignified branch of government, however, does not make it a neutral force in the machinery of government. The existence of the Crown’s honour is a tool that has been—and can be—used by courts to balance executive, legislative, and judicial power.

The doctrine of the honour of the Crown gives important texture to the relationship between the Crown, the state, and the state’s political actors in the executive and Parliament. This relationship is defined by service. Political failures become constitutional crises when service to the Crown is not conducted in good faith, when it is sufficiently politically self-interested as to deny the Sovereign’s role altogether. A court may intervene in this context, as it did in Miller v Prime Minister, to preserve the dignified branch of government. Canadian law does not currently protect the dignified branch of government, save perhaps in the context of First Nations disputes with the Crown —and this, principally in the context of land claims, and, more recently, in the context of the imperative to effect reconciliation. It has been said that ‘the doctrine's rationale is somewhat obscure’.[2] However, before the concept came to be applied in this settler context,[3] the doctrine of the honour of the Crown created rules of more general application that speak to a worldwide loss of faith in purportedly democratic systems, of which Westminster parliaments are an example.[4] Historical uses of the honour of the Crown in contexts not relating to Indigenous law are illustrative of the potential of the doctrine to be applied more broadly in Canada, outside of the aboriginal law context. The feudal Sovereign was immanent as a person possessed of legal powers, rights, and responsibilities. The Sovereign sustained personal bonds with subjects; its honour was a language used to define the relationship. In the centuries that followed the English Civil Wars (1640-49) and the Glorious Revolution (1688), this language lost ground to the idea of an impersonal, monolithic nation-state.[5] The state that represents Canada or the United Kingdom is, however, not monolithic.[6]

The honour of the Crown is a legal doctrine that at once speaks to the need for faith in the state and its systems while reminding those who live in Westminster systems of the path toward such faith.

The need for honour for our Crown in acts by legislators builds a check into the efficient branch of government--even if the Canadian Supreme Court opined that ‘a persistent pattern of inattention may [fail to implement an obligation in a manner demanded by the honour of the Crown] if it frustrates the purpose of the constitutional obligation, particularly if it is not satisfactorily explained’.[7] Understanding this check on executive authority presents a means to check the Crown’s authority, where that authority is narrowly construed as referring solely to the executive branch.[8] The Crown’s honour may well enhance Canadian democracy by forcing the executive branch to more careful.

FOOTNOTES:

[1] This blog excerpts and summarizes a longer academic paper by the co-authors that is pending publication [2] Patrick McCabe, “An Australian Indigenous common law right to participate in decision-making” (2020) 20:1 Oxford University Commonwealth Law Journal 52–85 at 66. [3] viz. Peter W Hogg & Laura Dougan, “The Honour of the Crown: Reshaping Canada’s Constitutional Law” (2016) 72 Supreme Court Law Review 291–318; Brian Slattery, “The Aboriginal Constitution” (2014) 67 Supreme Court Law Review 319–336; Manitoba Métis Federation Inc v Canada (Attorney General), 2013 SCC 14 op 77 [Manitoba Métis]; Province of Ontario v The Dominion of Canada and Province of Quebec In re Indian Claims, [1895] 25 SCR 434; Wewaykum Indian Band v Canada, 2002 SCC 79. [4] The Global Satisfaction with Democracy Report 2020, by RS Foa et al (Cambridge (UK): Centre for the Future of Democracy, 2020) at 16, 18–19; Trust in Canada, Edelman Trust Barometer (Ottawa: Edelman, 2021) at 20. [5] Though this personal form of government endures: Cris Shore, “The Crown as Proxy for the State? Opening up the Black Box of Constitutional Monarchy” (2018) 107:4 The Round Table 401–416 at 412. [6] F W Maitland, “Crown as Corporation” (1901) 17:2 L Q Rev 131–146 at 132, 136; Martin Loughlin, “The State, the Crown and the Law” in Maurice Sunkin & Sebastian Payne, eds, The Nature of the Crown (Oxford University Press, 1999) 33 at 39–40 DOI: 10.1093/acprof:oso/9780198262732.003.0003. [7] Ibid at para 107. [8] McLean summarizes this argument in relation to New Zealand’s relationship with the Māori: “The Many Faces of the Crown and the Implications for the Future of the New Zealand Constitution” (2018) 107:4 The Round Table 475–481 at 478.