On September 24, the Lord Reading Law Society welcomed Dean Robert Leckey to present the 2019 Alan B. Gold Lecture. The lecture, named in honour of former Quebec Superior Court chief justice Alan B. Gold, OC, OQ, is devoted to the art of advocacy and organized by the collective voice of Québec’s Jewish jurists.
Many prominent members of the legal community have previously given the Alan B. Gold Lecture, including former Supreme Court Justice the Rt. Hon. Beverley McLachlin and former Prime Ministers the Hon. Jean Chrétien and the Hon. Brian Mulroney, among others.
The evening began with introductory remarks from the Society’s president, Gregory Azancot, and from Jean-François Gaudreault-DesBiens, the former dean of Université de Montréal’s Faculty of Law. Dean Leckey then took to the stage to present his speech to a room filled with members of the Montreal legal community. Entitled “Advocacy Notwithstanding the Notwithstanding Clause”*, the lecture explored the implications of a paradigm shift in how governments invoke Section 33 of the Canadian Charter of Rights and Freedoms to shield legislation from entrenched rights. “Under the old paradigm,” Dean Leckey noted, “one way of understanding the notwithstanding clause was that it gave the legislature a means by which to disagree with the Supreme Court on such line drawing. On this approach, the legislature would wait to lose in court before using the override. In other words, the notwithstanding clause allowed the legislature to give effect to a law that it – but not the Court, or a majority of its judges – viewed as setting a reasonable limit on one or more rights.”
However, Dean Leckey believes we are moving into a new paradigm, where governments will be much more predisposed to shield their legislation from constitutional challenge when it infringes Charter rights. Shining a light on two recent and notable examples that demonstrate this paradigm shift – Ontario’s Better Local Government Act, and Quebec’s Bill 21, An Act respecting the laicity of the State – he noted that both provincial governments threatened to use Section 33 of the Charter even before a legal challenge was initiated against the law in question. “Under the new paradigm, the government doesn’t bother to claim that evidence justifies its policy choice, or that its chosen path is proportionate in its harms and benefits,” Dean Leckey said.
Although he acknowledged this shift in perspective over the use of Section 33 is disorienting, Dean Leckey ultimately sees it as an invitation for advocates “[…] to be bold, ambitious, and imaginative in drawing on our constitutional resources” when defending individuals in the face of rights-infringing legislation. According to Dean Leckey, the responsibility of an advocate within this new paradigm is twofold: first, to help judges recognize the shift and grasp its implications, and, second, to advance arguments which are appropriate to the evolving framework. Indeed, “as advocates [you] have a role in helping judges to recognize and adapt to the paradigm shift,” he noted. “It’s up to you to help the court to define its constitutional duty in new conditions.” It is incumbent on advocates to step in and prevent “a constitutional black hole” at a time when it can no longer be taken for granted that the legislature will respect fundamental rights. Ultimately, Dean Leckey is convinced that this challenge will be met.
*A lightly edited version of Dean Leckey’s speech has been published in the University of Alberta Faculty of Law’s Centre for Constitutional Studies journal, Constitutional Forum Journal. You can read it here.
Words: Sarah Huzarski
Photos: Naomi Silver-Vezina