The notwithstanding clause — what it is, why it was used and what happens next
Legal and constitutional expert says the taboo against using Section 33 of the charter has been broken
This is an excerpt from Minority Report, a weekly newsletter on federal politics. If you haven't subscribed yet, you can do that by clicking here.
Ontario Premier Doug Ford's decision to invoke the notwithstanding clause for the second time has prompted a public debate that cuts right to the heart of the Constitution.
At the centre of that debate is whether the Charter of Rights and Freedoms can still be said to exist in practice when some premiers appear eager to normalize the use of the charter's Section 33, which allows governments to temporarily override other sections of that document.
The NDP opposition in Ontario, New Democrats in Ottawa and the federal Liberal government have all cried foul, saying that the use of the notwithstanding clause is trampling the rights of Canadians.
"Canadians themselves should be extremely worried about the increased commonality of provincial governments using the notwithstanding clause preemptively to suspend their fundamental rights and freedoms," Prime Minister Justin Trudeau said Friday.
"The Charter of Rights and Freedoms cannot become a suggestion. The outrage we're seeing across the country right now … I think, is a moment for all Canadians to reflect."
Here's a look at the notwithstanding clause, how it came to be and how it's being used now.
Watch: Trudeau spoke to Ford about use of notwithstanding clause
What is the notwithstanding clause?
The notwithstanding clause, or Section 33 of the charter, gives parliaments in Canada the power to override certain portions of the charter for five-year terms when passing legislation.
The clause can only override certain sections of the charter — including Section 2 and sections 7 to 15, which deal with fundamental freedoms, legal rights and equality rights — but can't be used to override democratic rights.
Once invoked, Section 33 prevents any judicial review of the legislation in question. After five years, the clause ceases to have any effect — unless it is re-enacted.
Why do we have it?
In the early 1980s, the Liberal government of Pierre Trudeau wanted Canada to have its own constitution with an entrenched bill of rights. But negotiations stalled over concerns that the proposed Charter of Rights would be too powerful.
"There were a number of people, including several provincial premiers at the time, who were concerned that that would upset the balance of power between the federal and provincial governments and would put too much power in the hands of the courts," said Carissima Mathen, professor of law at the University of Ottawa.
"A number of premiers argued that there should be ... a sort of escape hatch from certain rights in the charter."
To ensure that federal and provincial parliaments maintained supremacy over the courts, the clause was included in the charter, accompanied by certain expectations regarding how it would be used.
"It was intended at that time to be used in the most unusual of circumstances," said Wally Oppal, a former B.C. attorney general and justice of both the provincial Supreme Court and the Court of Appeal in British Columbia.
"The reason I say that is because you are violating the rights of people, violating the terms of the supreme law of the land. And if you're going to do that, then it should be done only in most unusual and extenuating circumstances."
Why did the Ford government invoke the clause?
The Ford government is engaged in a dispute with Canadian Union of Public Employees (CUPE) over the union's demand for an 11.7 per cent annual pay raise for 55,000 education assistants, early childhood educators, custodians and administrative assistants.
The union says it cut its wage proposal by more than half in a counter-offer it gave the government last week, and made "substantial" moves in other areas as well. The provincial government said it would not negotiate unless CUPE cancelled a planned strike.
The union says that, from 2012 to 2021, the wages of education workers increased by about 8.5 per cent while inflation in Ontario rose 17.8 per cent, meaning the workers took a significant pay cut over that period.
The government offered raises of two per cent a year for workers making less than $40,000 and 1.25 per cent for all others. CUPE rejected the offer and talks broke down. On Friday, thousands of education workers across the province hit the picket lines for the first day of an indefinite walkout.
Ontario introduced back-to-work legislation imposing a four-year deal giving 2.5 per cent annual raises to workers making less than $43,000 and 1.5 per cent raises for all others.
In introducing that legislation, the Ford government invoked the notwithstanding clause.
Did the Ford government use the clause properly?
That is very much a matter of debate.
Lametti this week described Ontario's use of the clause as "pre-emptive."
"It was meant to be a last word for a legislature to exercise parliamentary sovereignty," he said. "If it's used at the beginning, it guts Canadian democracy and means the charter doesn't exist."
On that point, experts who spoke to CBC said they agreed that the clause was used pre-emptively — but that doesn't mean the Charter of Rights ceased to exist.
"I consider that that use is premature. I consider that it's untimely. But I do not deny the legitimacy of the use of the notwithstanding clause, and I certainly do not deny the constitutionality of the use of that clause," said Benoit Pelletier, law professor at the University of Ottawa and a former intergovernmental affairs minister in the Quebec government of Jean Charest.
Watch: 'Preemptive use of notwithstanding clause is anti-democratic': justice minister
Geoffrey Sigalet, the director of UBC's Centre for Constitutional Law, told CBC News that he is not at all surprised the Ford government chose to deploy the clause so early in its dispute with CUPE.
"I think that there is no constitutional issue necessarily with Ontario's legislature invoking the notwithstanding clause in the context of a policy where it has a potentially different view about what charter rights mean, in this context, than what the Supreme Court might have held," he said.
What does Ford's use of the clause mean going forward?
The repeated use of the clause in recent years has some warning that it could become a commonplace tool for governments.
In June 2021, Ontario invoked the clause for the first time in the province's history to limit third-party election financing. The Ford government threatened to use it in 2018 to uphold his plan to reduce the number of seats on Toronto City Council, before the courts sided with his government on the cut.
Francois Legault's government in Quebec pre-emptively invoked the notwithstanding clause to support Bill 21 — which bans the wearing of religious symbols by workers in the public sector — and Bill 96, the government's new language law.
Experts told CBC News that Canadians should expect to see governments use the clause again.
"Once you breach that norm, once you cross that bridge and you look to see what are the political consequences, and if the political consequences don't seem to be very strong for the government, then unfortunately I think what you start to see is a temptation to use it," Mathen said.
Can the clause be scrapped?
The Canadian Civil Liberties Association told CBC News it wants to see the clause dumped.
"The notwithstanding clause needs to be repealed to protect the fundamental rights of all people, whether it's the right of people to protest and dissent, whether it's the right of people to ask for decent working conditions, whether it's the right of people to equality," said Noa Mendelsohn Aviv, executive director of the CCLA.
Repeal is unlikely, experts said, because it would require provincial consent to a constitutional amendment. No government is eager to reopen the Constitution and the provinces aren't likely to surrender the leverage the notwithstanding clause gives them.
"There's no way the provinces will agree to it. Why would they agree to their only tool to resist judicial activism?" said Sigalet. "That's not going to happen."
ABOUT THE AUTHOR
