Ford’s Use of Notwithstanding Clause is Dangerously Antidemocratic

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So, Doug Ford was forced by the unions and negative public opinion polls to repeal his most recent legislation overriding Charter rights, just days after introducing it. Some may conclude he has seen the error of his ways. But make no mistake, this about-face was all about politics and nothing more. This is the same premier who, in the same week, managed to avoid testifying at the public inquiry into the use of the Emergencies Act by abusing the concept of parliamentary privilege, demonstrating once again his lack of respect for constitutional convention and political accountability. And he has made it clear that he will not hesitate to use section 33 (commonly known as the Notwithstanding Clause) again, whenever he thinks it might be convenient. It is this cavalier attitude towards the Constitution and Charter rights, and not just his latest attempt to use the notwithstanding clause, that must be categorically denounced before it causes irreparable harm to democratic institutions. 

Damage has already been done. The Ford government’s most recent threat to use the notwithstanding clause – the third time in four years – makes a mockery of this intended weapon of last resort, turning it into a garden variety, everyday occurrence that Canadians will come to believe is not only normal but harmless. No big deal, some may say. They could hardly be more wrong. While the British Judicial Committee of the Privy Council (JCPC) managed to neutralize the effectiveness of federal powers for nearly a century by deliberately ignoring the Peace, Order and Good Government clause (POGG) in the constitution, the effectiveness of the Charter of Rights in the constitution may come to be greatly diminished by premiers paying far too much attention to the notwithstanding clause in the Charter, frequently using it for insignificant and often blatantly political purposes.

Constitutional experts know the notwithstanding clause was meant to be used rarely, and only in the unlikely case of legislation where a court ruling goes far beyond the bounds of the mainstream political culture and opinions of the day. It was certainly not meant to be used preemptively, before a court had even ruled. Nor was it meant to be used for such ridiculously minor measures as limiting the number of Toronto city councillors or introducing new rules about third party advertising in elections, as Ford has done.

Ford is the first Ontario premier to invoke the clause, but he is not alone. Despite the fact that ideological conservatives traditionally promote the values of law and order and constitutional supremacy, three other conservative provincial premiers have also made inappropriate use of the notwithstanding clause in recent years and the trend appears to be growing. In 2000, Premier Ralph Klein of Alberta threatened to invoke the clause over the federal government’s proposed same-sex marriage legislation, but in the end did not do so when the courts ruled this was exclusively a federal area of jurisdiction and hence s33 could not be applied by the province. In 2015 Brad Wall of Saskatchewan threatened to invoke the notwithstanding clause over a court ruling on back-to-work legislation, and in 2017 he actually followed through on his threat and imposed the clause in response to a court ruling disallowing provincial funding of non-Catholic students in the province’s separate Catholic school system. Premier Francois Legault of Quebec has now invoked the clause not once but twice in the last four years, in order to shelter his blatantly unconstitutional violations of Charter rights in Bill 21 (limiting freedom of religion and freedom of expression) and Bill 96 (limiting language rights).

Meanwhile on November 1 of this year, just days after Mr. Ford’s dramatic capitulation to the unions, Alberta’s Justice Minister, Tyler Shandro, actually called on the federal government to use the notwithstanding clause to override the Supreme Court’s recent decision on mandatory registration of sex offenders. In response, Justice Minister David Lametti noted that the federal government has never used the clause and does not ever intend to. Lametti also pointed out that it is possible for a government to amend legislation to address problems in a bill that the Court has identified as potential Charter violations. This is, in fact, what federal governments have done in the past on legislation found wanting by the Court, for example in matters related to prostitution, immigration and refugee determination and medical assistance in dying. Indeed, on several occasions the Court has offered suggestions as to how legislation could be revised to avoid any Charter rights conflicts. Lametti has indicated he will review the Court’s decision to see if that could be the case in this instance.

In order to understand the significance of the notwithstanding clause It is also worth noting how the clause came to be included in the Charter in the first place, especially since it is a unique feature among constitutional democracies and remains highly controversial.

Simply put, Section 33 was the quid pro quo imposed by premiers Allan Blakeney of Saskatchewan and Sterling Lyon of Manitoba in exchange for their support in the final round of federal-provincial negotiations that resulted in the adoption of the Constitution Act, 1982 and the entrenchment of the Charter of Rights and Freedoms. A reference to the Supreme Court had just concluded that, although the federal government did not need unanimous support from the provinces to proceed with patriation and the adoption of the constitutional package,  it did need to have more than the two provinces that were already on board. (Ontario and New Brunswick, led by Progressive Conservative premiers Bill Davis and Richard Hatfield). Prime Minister Pierre Trudeau’s reluctant agreement to add the clause was a crucial factor in ensuring that nine of the ten provinces fell into line.

But what exactly was the issue that led Blakeney and Lyon to argue for the insertion of this clause, since in principle everyone was supporting the idea of an entrenched charter of basic human rights? In a nutshell the two premiers, along with Peter Lougheed of Saskatchewan, were supporters of the concept of parliamentary supremacy. In layman’s language, this meant they wanted to be sure that an elected government could overturn a ruling by an unelected judiciary if they believed that ruling was clearly out of tune with the times and public opinion. Even Blakeney and Lyon agreed that this was highly improbable but, both being lawyers, they wanted to be sure there was an escape clause in the unlikely event such a situation should arise.

By contrast, opponents of this concept of parliamentary supremacy, including Trudeau, argued that fundamental rights and freedoms are such a basic element of democratic regimes that no legislature should ever be able to override them and, in fact, should not want to. They also argued it is precisely the role of an independent judiciary to determine if any legislation does contravene such basic rights and freedoms. These opponents of section 33 also pointed out that rights are not absolute, (for example, the “my rights end where yours begin” argument) and that the Charter already contained a measure to provide some limits. This was section 1, whose stated purpose was to “guarantee the rights and freedoms set out in it (the Charter) subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

However this caveat did not sway the western premiers and the notwithstanding clause was added, albeit with a five-year sunset clause demanded by Trudeau. This meant any recalcitrant premier would have to re-introduce the notwithstanding clause after five years in order to continue to protect the legislation in question.

At the time Trudeau believed that the inclusion of the notwithstanding clause, while unnecessary, was not that serious a blow. No premier, he felt, would ever introduce legislation that violated Charter rights for fear of voter retaliation. Trudeau also made a commitment that the federal government would never invoke it, and set up a section in the Department of Justice to vet proposed federal legislation in order to be sure that such legislation never contravened Charter rights. 

 Sadly, he was wrong on both counts. Almost immediately after the Charter came into effect in 1982 the separatist premier of Quebec, Rene Levesque, in a show of defiance, invoked section 33 as a blanket measure to exempt all provincial legislation. However at the end of the five-year period the measure lapsed and was not re-introduced. But 40 years later Quebec Premier Legault’s government preemptively invoked s.33 to exempt his 2 specific bills that clearly would be ruled unconstitutional by the courts because of their violation of various Charter rights.  

Meanwhile at the federal level no government has ever invoked the notwithstanding clause, but the Conservative government of Stephen Harper did find another way to circumvent Charter rights, at least in the short term. As Canadians learned through the trial of former senior Justice Department lawyer and whistleblower Edgar Schmidt, the role of the department in vetting government legislation before it was tabled in parliament, to avoid potential Charter violations, had been deliberately watered down. The result was a steady stream of federal legislation being overturned by the Supreme Court as unconstitutional, which then allowed Harper to claim the Court was functioning in a liberal-minded “activist” role, the very thing that Blakeney and Lyon had feared. This was not, of course, what the premiers had anticipated, but it served the Conservatives’ purpose, just as it had done in the United States for Ronald Reagan. It could, in fact, be argued that the Harper government’s attacks on the Supreme Court were a catalyst for the growing willingness of provincial premiers to consider using the notwithstanding clause in anticipation of inconvenient adverse court rulings.

The tale of two provinces, Quebec and Ontario, shows how disparate the political consequences can be. In Legault’s case, widespread support for his brand of populist nationalism — especially in his rural Quebec heartland — has allowed him to proceed with impunity against a number of disadvantaged minorities. In Ontario, by contrast, Ford’s attempts to override well-established union rights to strike and negotiate collective agreements in good faith has unleashed a political backlash from which he may not recover in time for the next provincial election. Moreover it has raised the consciousness of major national unions, who were allegedly prepared to intervene as well if he did not back down. 

But while the union response is encouraging, it is limited in scope.  Absent a vigorous federal defence of Charter rights vis a vis the Quebec legislation, it may remain an exception to the growing challenge to the rule of law and constitutional supremacy by right-wing populists. One need only look to the worsening situation in the United States, where both a former president and several sitting members of the Supreme Court have demonstrated disdain for such principles, to see where failure to mount a vigilant defence of democracy and human rights can lead.