Canada's notwithstanding clause — what's that again?

Ontario Premier Doug Ford plans to invoke the notwithstanding clause of Canada's Charter of Rights and Freedoms to push through an order to reduce the size of Toronto's city council after a judge's ruling blocked his government from going ahead with the plan to cut the number of councillors by nearly half.

The dramatic step would make Ford the first Ontario premier to ever use the clause, which allows government to create laws that operate in spite of certain charter rights that the laws appear to violate.

The notwithstanding clause, officially called Section 33, allows provincial or federal authorities to override or essentially ignore sections of the charter they do not like for a five-year period.

Politically, the notwithstanding clause is a particularly powerful tool, said Eric Adams, constitutional law professor at the University of Alberta. "Efforts to challenge the reasoning behind the use of the notwithstanding clause have not succeeded to date," he said, referencing more than a dozen past incidents. In other words, when a provincial government invokes the clause, they almost virtually always get their way. 

The notwithstanding clause was created as a compromise between federal and provincial officials during debates over a new constitution in the 1980s.

What does the notwithstanding clause do?

The notwithstanding clause allows the federal government or a provincial legislature to enact legislation to override several sections of the charter that deal with fundamental freedoms, legal rights and equality rights.

These include freedom of expression, freedom of assembly, and freedom from unreasonable search and seizure, to name a few. But a number of other charter rights cannot be overridden. These include democratic rights, mobility rights, and the equality of men and women.

Simply put, this override power allows governments to create laws that will operate in spite of (or "notwithstanding") some charter rights that the laws appear to violate.

This override power is temporary. Any notwithstanding clause declaration expires after five years, but can be re-enacted indefinitely. The five-year rule is deliberate, said Adams, as it ensures "there will always be an election in the interim between using it for the first time and this sunset clause.

How many times has it been used and by whom?

The clause has been invoked more than 15 times, mostly in Quebec.

The Saskatchewan government used the clause as a preventive measure in a mid-1980s labour dispute with provincial government workers. The Supreme Court later ruled that the law didn't violate the charter, so the notwithstanding clause didn't need to be invoked.

The Parti Québécois government in Quebec chose to object to the new Constitution's terms by including a notwithstanding clause in every piece of legislation it introduced from 1982 to 1985. But this was a political protest, not aimed at protecting a specific law from a charter challenge.

It was Quebec's later use of the clause to override minority language rights that caused the most controversy by far. The Supreme Court of Canada had ruled that parts of Quebec's language law (Bill 101) related to French-language signage were an unreasonable limitation on the charter guarantees of freedom of expression.

Saskatchewan used the clause in 2017 over legislation related to Catholic school funding. 

How did the clause come about?

The notwithstanding clause had its genesis at first ministers conferences in 1980 and federal-provincial meetings through 1981, leading up to patriation of the Constitution in 1982.

Various factions in the discussions argued over whether the new Constitution should include an entrenched charter of rights. Several compromises were proposed and abandoned.

Pierre Trudeau, who was then prime minister, argued against the idea of a notwithstanding clause but faced opposition from provinces that wanted a way to override some charter guarantees.

Finally, on the night of Nov. 4, 1981, then-justice minister Jean Chrétien and Saskatchewan's then-attorney general Roy Romanow hammered out the so-called "Kitchen Accord" — a compromise that included an entrenched charter of rights along with notwithstanding provisions.

Following some more tweaking (all without Quebec's participation), the federal government and nine provinces (Quebec refused to go along) signed the constitutional accord on Nov. 5, 1981 — an accord that included a notwithstanding clause. 

What does Doug Ford need to do in order to invoke the clause?

Ford simply needs a vote passed in the Ontario Legislature to invoke the clause. The move would then have to be approved by the lieutenant governor of Ontario. As the Conservatives have a majority government in the province, Ford's ability to pass such as vote is virtually guaranteed.

The federal cabinet could potentially pass legislation to override Ford's use of the clause, said Ian Brodie, a political science professor at the University of Calgary who served as chief of staff to former prime minister Stephen Harper, but such a move is unlikely. 

Sources: Parliamentary Research Branch of the Library of Parliament and the Department of Canadian Heritage. With files from Chris Arsenault.