What’s at Stake in Ontario’s Notwithstanding Clause Debate?

Vanessa MacDonnell

University of Ottawa

In the run-up to the 2006 federal election, Canadian Prime Minister Paul Martin surprised observers by announcing that if the Liberals were re-elected, they would move to repeal section 33 of the Canadian Charter of Rights and Freedoms, also known as the notwithstanding clause. The section, which has been used occasionally and always controversially since 1982, permits the legislature to enact a statute containing a clause stating that the statute is to “operate notwithstanding” certain Charter rights such as freedom of religion, expression, association, equality, life, liberty and security of the person, as well as the rights of accused in the criminal process. On at least one reading, section 33 allows the legislature to enact laws that infringe constitutional rights without the providing a legal justification for doing so. The Liberals were ultimately defeated in the election and so Martin’s pledge came to nothing. But for a moment, the public conversation turned to the merits of the notwithstanding clause as a feature of Canada’s Constitution.  

Fast-forward to 2018, and the notwithstanding clause is national news again. In June, Doug Ford, a provocative former Toronto city councillor and brother of infamous onetime Toronto mayor Rob Ford, became Premier of Ontario. His government immediately introduced legislation reducing the size of Toronto City Council from 47 to 25 wards during an ongoing municipal election. The Better Local Government Act received Royal Assent in August.

Predictably, the law’s constitutionality was challenged, and on September 10, a Superior Court justice struck down the Act as an unjustified violation of freedom of expression. Later that day, Premier Ford announced that his government would appeal the ruling and that it would also invoke the notwithstanding clause to shield the Act from constitutional attack. Bill 31, the legislation containing the notwithstanding clause, was introduced in the legislature on September 12 and is currently at second reading.

On September 19, the Ontario Court of Appeal granted the Ford government a stay pending appeal. In their reasons for granting the stay, the Court of Appeal signalled that the trial judge’s ruling would likely be overturned on appeal. The election is scheduled to proceed on October 22, 2018 on the basis of the reduced number of wards. 

There are two theories of the notwithstanding clause. The first and most widely accepted theory is that, as law Professor Lorraine Weinrib puts it, the clause allows the legislature to “suppress certain rights for a limited period subject to certain formalities.” This view is supported by the only decision in which the Supreme Court has interpreted section 33, Ford v AG Quebec. The second is that when the clause is invoked following an adverse court ruling, the government is taking the position that its legislation is constitutional on a different interpretation of constitutional rights than the one accepted by the court. This second theory applies with particular force when there are competing constitutional rights at stake and political actors and courts must find a way of reconciling them.

It is possible that the Ford government is justified in invoking the notwithstanding clause because it can reasonably claim that the Better Local Government Act is constitutional. At second reading of Bill 31, Attorney General Caroline Mulroney stated that the Conservative government was invoking the notwithstanding clause because of “a profound disagreement over the correctness of the ruling issued by the Superior Court.” Scholars have also expressed scepticism about the merits of the constitutional arguments advanced in the case. The Court of Appeal’s reasons for granting a stay pending appeal cast further doubt on the strength of the constitutional claim. 

However Other public statements by the government are more consistent with the traditional understanding of the notwithstanding clause. In the same speech, Mulroney explained that “We believe that the size of a municipal council is a political question that ought to be decided by the Legislature, which is why we have proposed that this Legislature invoke section 33.” 

Whatever the government’s motivations, one thing is clear. The use of the notwithstanding clause is exceptional. In fact, some scholars have suggested that the stigma around its use had rendered it effectively inoperative. In choosing to invoke the notwithstanding clause, therefore, Ford is defying convention. But there’s more: Ford has indicated that he will use the notwithstanding clause again if necessary. This raises the spectre of the government using the clause as a matter of routine in response to adverse court rulings. This should be cause for concern. Whatever one thinks of the use of the notwithstanding clause, few scholars would advocate for government-by-notwithstanding-clause. Such an approach would seriously undermine constitutional rights protections. 

Any use of the notwithstanding clause should be preceded by serious, reasoned deliberation, both within the executive and in the legislature. It should be accompanied by a clear explanation of the rationale for invoking the clause. This standard has not been satisfied in the Toronto City Council matter. 

Finally, attempts to invoke the notwithstanding clause as a matter of routine should be strenuously resisted. Its persistent use would undermine not only long-settled assumptions about the role of the notwithstanding clause in our constitutional order, but more importantly, our core constitutional commitments. Paul Martin may have put it too strongly when he suggested in 2006 that the notwithstanding clause should be abolished because “courts shouldn’t be overturned by politicians.” But politicians must proceed cautiously when they do.

Suggested citation: Vanessa MacDonnell ‘What’s at Stake in Ontario’s Notwithstanding Clause Debate?’ IACL-AIDC Blog (October 3 2018) https://blog-iacl-aidc.org/blog/2018/10/3/whats-at-stake-in-ontarios-notwithstanding-clause-debate

Vanessa MacDonnell is a constitutional law professor at the University of Ottawa. This blog post is an expanded version of an op-ed that appeared in the Toronto Star on September 11, 2018. The author is grateful to Michael Pal for reading an earlier version of this post.