The notwithstanding clause — what it is, why it was used and what happens next

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Ontario Premier Doug Ford’s decision to invoke the notwithstanding clause for the second time has sparked a public debate that goes right to the heart of the Constitution.

Central to this debate is whether the Charter of Rights and Freedoms can still be said to exist in practice when some prime ministers seem keen to normalize the use of section 33 of the Charter, which allows governments to temporarily override other sections of this document.

Opposition New Democrats in Ontario, New Democrats in Ottawa and the federal Liberal government have all cried foul, saying the use of the notwithstanding clause violates the rights of Canadians.

“Canadians themselves should be extremely concerned that provincial governments are preemptively using the notwithstanding clause 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 are seeing across the country right now…I think this is a time for all Canadians to reflect.”

Here’s an overview of the notwithstanding clause, how it came about, and how it’s being used now.

Watch: Trudeau spoke to Ford about using the notwithstanding clause

What is the notwithstanding clause?

The notwithstanding clause, or section 33 of the charter, gives Canada’s parliaments the power to override parts of the charter for five-year terms when passing laws.

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 cannot 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 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 enshrined bill of rights. But negotiations have stalled over fears that the proposed Bill of Rights will be too powerful.

“There were a number of people, including several provincial premiers at the time, who were concerned that this would upset the balance of power between the federal and provincial governments and give too much power to the courts,” Carissima said. Mathen. , professor of law at the University of Ottawa.

“A number of Prime Ministers have argued that there should be … some sort of loophole to certain Charter rights.”

In order to ensure that the federal and provincial parliaments maintain their supremacy over the courts, the clause was included in the charter, along with certain expectations as to its use.

“It was intended at the time to be used in the most unusual of circumstances,” said Wally Oppal, former attorney general of British Columbia and judge of the provincial Supreme Court and Court of Appeal for British Columbia. British.

“The reason I say this is because you are violating people’s rights, violating the terms of the supreme law of the land. And if you’re going to do that, then it should only be done in the most extreme circumstances. unusual and most mitigating.”

Why did the Ford government invoke the clause?

The Ford government is embroiled in a dispute with the Canadian Union of Public Employees (CUPE) over the union’s demand for an 11.7% annual wage increase for 55,000 teacher assistants, early childhood educators , janitors and administrative assistants.

The union says it cut its wage proposal by more than half in a counter offer it presented to the government last week, and has also taken “substantial” action in other areas. The provincial government has said it will not bargain unless CUPE calls off a planned strike.

The union says that from 2012 to 2021, wages for education workers have increased by around 8.5% while inflation in Ontario has increased by 17.8%, meaning workers have suffered a significant pay cut during this period.

The government offered increases of 2% per year for workers earning less than $40,000 and 1.25% for everyone else. CUPE rejected the offer and the talks broke down. On Friday, thousands of education workers across the province picketed the first day of an indefinite walkout.

Ontario introduced back-to-work legislation mandating a four-year deal giving annual increases of 2.5% to workers earning less than $43,000 and 1.5% to everyone else.

In introducing this bill, the Ford government invoked the notwithstanding clause.

Did the Ford government make good use of the clause?

It is a matter of debate.

Lametti this week described Ontario’s use of the clause as “preventive.”

“It was meant to be a final word for a legislature to exercise parliamentary sovereignty,” he said. “If used in the beginning, it undermines Canadian democracy and means the charter doesn’t exist.

On that point, experts who spoke to CBC said they agreed the clause was being used preemptively — but that doesn’t mean the Bill of Rights has ceased to exist.

“I consider this use to be premature. I consider this to be inappropriate. 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 this clause,” said Benoit Pelletier, professor of law at the University of Ottawa and former Minister of Intergovernmental Affairs in the Quebec government of Jean Charest.

Watch: ‘Preventive use of the notwithstanding clause is undemocratic’: Justice Minister

‘Preventive use of the notwithstanding clause is undemocratic’: Justice Minister

Justice Minister David Lametti discusses Ontario’s use of the notwithstanding clause in its dispute with Ontario education workers.

Geoffrey Sigalet, director of UBC’s Center for Constitutional Law, told CBC News he was not at all surprised the Ford government chose to roll out the clause so early in its dispute with CUPE.

“I think there is not necessarily a constitutional problem with the Ontario legislature invoking the notwithstanding clause in the context of a policy where it has a potentially different view of what the rights guaranteed by the Charter, in this context, than what the Supreme Court could have decided,” he said.

What does Ford’s use of the clause mean in the future?

The repeated use of the clause in recent years suggests 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 maintain its plan to cut Toronto City Council seats, before the courts sided with its government.

The government of François Legault in Quebec has preemptively invoked the notwithstanding clause to support Bill 21 – which prohibits the wearing of religious symbols by public sector workers – 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’ve broken that norm, once you’ve crossed that bridge and you look at what the political consequences are, and if the political consequences don’t seem to be very strong for the government, then unfortunately I think that’s you’re starting to see is a temptation to use it,” Mathen said.

Can the clause be deleted?

The Canadian Civil Liberties Association told CBC News it wants the clause dropped.

“The notwithstanding clause must be repealed to protect fundamental rights for all, whether it is the right of people to protest and dissent, the right of people to demand decent working conditions, the right of people to equality,” said Noa Mendelsohn Aviv, Executive Director of CCLA.

Repeal is unlikely, experts say, because it would require provincial consent to a constitutional amendment. No government is eager to reopen the Constitution and the provinces are unlikely to give up the influence that the notwithstanding clause gives them.

“There is no way the provinces will accept this. Why would they accept their only tool to resist judicial activism?” Sigalet said. “It’s not going to happen.”