Yesterday, Judge Belobaba ruled that Doug Ford’s Bill 5, also known as the “Better Local Government Act”, was unconstitutional because it violated the Constitution’s Charter of Rights and Freedoms. Hours later, Ford said that he was going to attempt to push the Bill through anyway by invoking something called the “Notwithstanding Clause”.
What is the Notwithstanding Clause?
Section 33 of the Charter of Rights and Freedoms, often referred to as the “Notwithstanding Clause”, allows a provincial government to pass and enforce legislation that would otherwise be found to violate the Charter. In this case, since Bill 5 was struck down because of the Charter (Section 2b in particular), the Notwithstanding Clause could allow the bill to be passed “notwithstanding section 2b”.
Are there any limits on the Notwithstanding Clause?
Thankfully, yes! The “Notwithstanding Clause” is only valid for five years. After that, they have to be Charter-compliant. The idea here is that since there’s an election every five years, someone abusing the “Notwithstanding Clause” could be voted out of government due to their unpopularity.
The Notwithstanding Clause can only be used on things that are under Provincial control. For example, Alberta tried to use it in 2000 to define marriage to be inherently heterosexual. However, it failed to apply because marriage is the domain of the federal government.
Furthermore, the Notwithstanding Clause can only be applied to certain, specific areas of the charter. Other Charter rights are completely untouchable! Untouchable I say!
Hooray wrong! The Un-untouchable parts (Sections 2 & 7-15) are really important!
They include greatest hits like Freedom of Religion (Section 2a), Freedom of expression (2b), Freedom from getting sent to prison for no reason (9), to be told why they’ve been arrested (10a, 11a), and Freedom to not be subject to cruel or unusual punishment (12).
I thought these rights were important. Why do we have a provision like that?
In 1982, Prime Minister Trudeau (the dead one) undertook the process of “repatriating” the Canadian Constitution. Previously, our constitution was tied up with the British system according to the “British North America Act”. We were our own country, so we deserved to have complete control over our own system, he reasoned.
In creating the Constitution, the Provinces were worried that it would give enormous power to the Federal Government and ignore the specific interests of the Province. They also worried that it would give appointed officials (judges) more power than elected officials. To alleviate these concerns, Trudeau included the “Notwithstanding Clause” to appease the Provinces.
Why am I just hearing about this now?
This is the first time it’s been used in Ontario!
Has it been used elsewhere?
Yep, that’s why I said “in Ontario”, you silly goof!
It was attempted in the Yukon in 1982, but the law never came into effect anyway. Saskatchewan tried to use it in 1986 regarding back-to-work legislation, but it was found to be Charter-compliant anyway.
Just this year, Saskatchewan invoked it in a question of public funding of Catholic schools.
Overall, it’s been used very sparingly, except in Quebec.
What’s the deal with Quebec?
From 1982-1987, the Parti Quebecois inserted the Notwithstanding Clause into every piece of legislation it passed. It did this as a sort of protest statement against Federal meddling in the affairs of Quebec. It pretty much never mattered, except in 1988 when Quebec used it to not have to have English signage anywhere.
History sure is wild!
You said it, pal!
I thought the Federal Government is more powerful than the Provincial. Can’t Daddy Trudeau step in and clean up this mess?
The Feds do actually have the ability to do so! This is referred to as the Power of Disallowance. It allows the Federal government to literally disallow the use of a piece of legislation. But they probably won’t do that.
Why Not? Why has Daddy Trudeau forsaken me?
The Power of Disallowance is a weird relic of that old British North America Act. It’s a feature of British parliamentary systems sort of used as a last resort or error-correcting matter.
It hasn’t been used since the early 40s, and its status in Constitutional Law is seen as sort of up-in-the-air. There’s a sort of silent agreement that it’s not to be used except in extraordinary circumstances. Toronto City Council size would be a strange hill to die on, as it’s a pretty minor issue.
Why did the Judge used Section 2 if it can just be ignored here?
These constitutional rights are usually powerful! Practically nobody uses the Notwithstanding Clause, so it really didn’t seem like it’d be an issue. Violating people’s Charter Rights is seen as a pretty big deal™, so it’s political unpopularity is seen as a natural limit on the Notwithstanding Clause’s use.
I just googled the Charter and there’s a section called “Democratic Rights”, and they’re not covered by the Notwithstanding Clause. Wouldn’t those be in violation?
Hey, me too! Those “democratic rights” (Sections 3-5) are basically just rules about the legislature. The right to vote, the fact that term limits are five years, and that the legislature has to meet at least once a year. Bill 5 doesn’t seem to touch those.
Is that it then?
The only other option would be to find the law to be unconstitutional for another reason. Since the Notwithstanding Clause only applies to certain sections, if another suit takes place then Bill 5 could still be struck down if it violates other sections.
Is that likely?
I’m not a judge! I’ve only been in law school for two weeks!
What if I like Bill 5? Isn’t this Ford’s only option to pass this magnificent legislation along?
Ford has other options! Options that don’t bypass the charter. Ford stated that he’s using the Clause because he felt that the judge overstepped in their ruling. That sort of thing happens all the time, and in this case you need to get a higher court ruling. Higher courts oversee existing court decisions, determining if the judges messed up in their decisions.
Wow cool, does that place have a cool, creative name?
No, in this case it’s called the Ontario Court of Appeals.
Why doesn’t he just got there?
He will! Ford has signalled that he’ll definitely be appealing if he can’t use the “Notwithstanding Clause”.
If he’s appealing anyway, what’s the big deal?
The fact that he’s willing to invoke the “Notwithstanding Clause” speaks volumes. It could mean that he doesn’t expect to win the Appeal case, meaning that it is in fact a Charter violation. Or, it means that he just wants to speed the legislation along, meaning that he thinks that expediency is more important than proper procedure and Charter Rights. Either way, it’s a bold move against our Charter Rights, which we established are super duper important.
You’ve convinced me! What can I do to stop the “Notwithstanding Clause”?
The MPPs are voting on whether or not to invoke the notwithstanding clause. Ford has pledged not to “whip” the party, meaning he won’t be forcing his party to vote this way. If you don’t like the idea of the notwithstanding clause being used here, make sure to call or e-mail your MPP, especially if they’re a conservative MPP.
Find your MPP’s contact info here:
Don’t know your MPP? Find it with your postal code!