Is Ford’s use of the notwithstanding clause legitimate?

In a bill tabled Thursday, Premier Doug Ford’s government invoked the notwithstanding clause in the Canadian Charter of Rights and Freedoms. The aim is to allow restrictions on thirdparty political advertising to operate, despite a judge’s ruling that they violate the charter’s guarantee of freedom of expression.

With an election on the horizon, supporters and opponents of the Ford government will dispute the merits of this move. But we need a broader conversation about when a government’s use of the notwithstanding clause is legitimate.

Section 33 of the charter, known as the “notwithstanding clause” or the override, allows the Parliament of Canada or a provincial legislature to declare that a law will have its effect — despite or notwithstanding one or more charter guarantees. The notwithstanding clause can produce effects for a maximum of five years at a time, but it can be reactivated.

The device is a political compromise from the negotiations leading up to adoption of the charter in the early 1980s. It reflects concerns about making the judiciary the sole deciders about the appropriate balance between the rights and freedoms in the charter and other considerations of public policy. It has been used rarely, though more often than many realize.

The Ford government is using it now for the first time in Ontario history. Bill 96, the reforms related to the French language under consideration in Quebec’s National Assembly, also uses it. So did Quebec’s secularism law, Bill 21, adopted in 2019.

In discussing use of the notwithstanding clause, distinguishing two matters is crucial. The first is timing. The notwithstanding clause can be used after an unfavourable court ruling, as in the Ontario case. Or it can be used pre-emptively through enactment of a law, as in the two Quebec examples given.

The second matter is the scope of protection activated by the legislature. Does the legislature make its law operate notwithstanding one or two specified rights that might plausibly conflict with that law? Or does it push aside the full range of guarantees potentially subject to the notwithstanding clause?

Although Quebec’s Bill 21 focuses on religious symbols, it activates the notwithstanding clause to the fullest extent possible. It thus pushes aside not only the charter rights to religious freedom and equality, but others with no plausible connection to it, such as the right to a criminal trial within a reasonable time. In April’s judgment in the challenges to this law, the judge expressed dismay at this “wall-to-wall” use of the notwithstanding clause, taking it as evidence of a flagrant disregard for rights.

While the notwithstanding clause is understood as primarily a political matter, there may be some work here for my fellow lawyers. The recent Quebec judgment suggested that a higher court revisit the minimal conditions a legislature must satisfy to activate the notwithstanding clause.

But fundamentally, increasingly casual use of the notwithstanding clause is a wake-up call to civil society organizations, journalists and the voting public. As a part of the Constitution of Canada, the notwithstanding clause can be used legally. Ford’s majority at Queen’s Park assures that he can do so in the coming days. But the exercise of a power may be legal without being legitimate.

What elements would make a use of the notwithstanding clause legitimate? Canadians haven’t debated this enough, and it matters — voters are the ultimate judges of how their elected representatives respect fundamental rights.

For some, the notwithstanding clause’s place in the charter makes any use of it by elected lawmakers legitimate. The better view is that other factors are relevant. What are the reasons for using the notwithstanding clause? Do they support a vision of the public good, or do they reflect partisan or electoral selfinterest? How severe is the impact on the minorities whose protection from majoritarian oppression is the reason we entrenched the charter? Is the government making rights trade-offs differently from the courts or showing contempt for rights?

When elected lawmakers make a law operate despite our fundamental rights and freedoms, we have a collective duty to scrutinize the answers to these questions.