Daniel Tencer: Don't let Ford (and Legault) whittle away your rights. Get mad

The notwithstanding clause wasn’t the product of any debate on political philosophy, but the result of political horse-trading.

By: Daniel Tencer

It’s quite telling that, in later years, two key figures in the creation of Canada’s Charter of Rights and Freedoms tried to distance themselves from one aspect of that document.

Neither Pierre Trudeau, who ushered in the Charter as prime minister in 1982, nor his justice minister at the time, Jean Chrétien, wanted responsibility for the infamous “notwithstanding clause” which allows legislatures to override courts that declare their laws unconstitutional.

Chrétien recalled in his 2008 memoir how he and Trudeau tried to fob responsibility for it off on one another. 

“Sorry, Pierre,” Chrétien told his old boss in 1992. “I recommended it. You gave it to them.”

When two statesmen who were key to creating the country’s constitutional order attempt to evade responsibility for the outcome, your country may have a problem.

Doug Ford last week became the first premier in Ontario’s history to cite the infamous notwithstanding clause in a law, overriding a court ruling that his new political ad spending law — clearly aimed at reducing union influence — violated the Charter right to freedom of expression. (He had previously said he would do so in order to shrink the size of Toronto City Council, but later legal developments made the use of the clause unnecessary.) 

The notwithstanding clause — officially Section 33 of the Charter — is not new, of course, but its use is accelerating. Setting aside Quebec Premier Rene Levesque’s blanket use of the clause on all provincial legislation during his time in office in the 1980s, the clause has been invoked 11 times in the history of the Charter, counting both instances where it came into force and those where it didn’t. Of those 11 times, six have taken place in just the past three years.

What has largely kept premiers from using it over the years is fear of political fallout. We are not some banana republic, and pushing through laws that have been declared unconstitutional comes with a heavy price, first in the news media and then at the polls.

Or maybe not.

Our political leaders are clearly losing their fear of Section 33, and it’s clear to see why: They largely haven’t paid a price for using it. Quebec Premier François Legault has used the clause twice in the past several years. The first time was to protect Bill C-21, the “secularism” law that forbids government workers from wearing religious symbols such as hijabs and yarmulkes. The Quebec Superior Court ruled in April that the law does violate Charter rights — but most of it can’t be struck down because of the notwithstanding clause.

That law has proven so popular in Quebec that Legault is repeating the trick, invoking the notwithstanding clause on his new Bill-96 earlier this year, which among other things limits spaces for francophones in English schools.

In Quebec, the notwithstanding clause has almost become a symbol of its unique identity. Premier Robert Bourassa used it in 1988 to protect Loi 101, the famous Quebec “language law” that limits English signage, and its use has come with the implied narrative that Quebec’s values are just a little different from the rest of Canada’s.

But Ford’s use of the clause with respect to the political ad spending law is something new. There is no populist political advantage here; he’s using it to uphold an election spending law. He is also using it lazily. As other commentators have pointed out, Ford’s government could have appealed the ruling or re-written the law to conform with Charter rights — the things governments typically do when a court rejects their legislation. 

So how big is the danger to our rights? Strip away the political considerations and look only at the language in the Charter, and the possibilities of the notwithstanding clause are downright alarming. 

The clause applies to sections 2 and 7 through 15 of the Charter, which includes most of the “big ones” — freedom of expression, religion and association; freedom from arbitrary detainment and cruel or unusual punishment; the right to be presumed innocent until proven guilty; freedom from discrimination on the basis of race, gender, age, religion and mental health; and even "the right to life, liberty and security of the person."

On the other hand, legislators can’t override parts of the Charter having to do with voting rights and a number of details relating to official languages. The result is a Charter that, taken to its extreme, allows a legislature to pass a law that could directly cause your death, or imprison you without cause, but under no circumstances will you ever be forced to go to school in a different official language than the one you speak at home.

(That part about language was a clear shot across the bow of Quebec’s premier at the time the Charter was signed, the separatist René Lévesque. He took his revenge by invoking a blanket notwithstanding clause on all his legislation until he left office in 1985. The politics behind Section 33 are not Canada’s proudest historical moment.)

There is an argument to be made that some kind of constitutional override makes sense. There should be mechanisms to prevent judicial overreach, to stop higher courts from rewriting laws at their whim. Chrétien himself pointed out that it could be used to uphold child porn and hate speech laws that run afoul of Charter rights.

But this particular notwithstanding clause gives power to legislatures in often random ways, because it wasn’t the product of any debate on political philosophy, but the result of political horse-trading. 

The clause does have some safeguards to prevent outright tyranny, the main ones being that you can’t touch voting rights or parliamentary terms, and any use of it expires automatically after five years, meaning it has to be voted on again and again to be permanent.

But the cynic in me would like to point out that the five-year sunset mechanism ensures that a government can only take away your fundamental rights, including your right to life, for five years straight. 

While a Canadian premier going full Stalin is hard to imagine, it’s much easier to imagine a slow erosion of rights, bit by bit, year by year, as one issue after another makes it politically profitable for premiers to override court rulings.

If Ford suffers no political cost for this move, he will have incentivized incompetence, managerial laziness and the impulse towards tyrannical behaviour among our political leaders. 

The notwithstanding clause could prove to be Canada’s version of gerrymandering or court-stacking, our own particular failure of democracy. Let’s not let it get to that. Let’s make sure Doug Ford — and François Legault, and anyone else who uses Section 33 — hear loud and clear from the public on this one.

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