Doug Ford’s use of the notwithstanding clause may be extraordinary — but it’s completely legal

By Steve Paikin - Published on September 11, 2018
A group of men stand in a circle and talk.
Ontario premier Bill Davis (right), confers with Prime Minister Pierre Trudeau (centre) and Constitutional Affairs Minister Jean Chrétien (second from left) in November, 1981. (Government of Ontario)

It was, without question, one of the most extraordinary days in Ontario political history: on Monday, for the first time ever, an Ontario government announced that it would use the so-called notwithstanding clause of the Canadian Charter of Rights and Freedoms to overturn a court decision.

There were no doubt many Ontarians asking themselves, “Is this legal? Can the premier really do this?” The answer is: yes, he can do this — and the original framers of the clause, also known as Section 33, actually anticipated these circumstances, which is why it’s there to begin with.

To understand why the notwithstanding clause exists, you’ve got to go back 37 years, to the most consequential first ministers’ meeting since Confederation. The current prime minister’s father, Pierre Trudeau, had decided, after returning to power in 1980, that constitutional renewal would be the watchword of what turned out to be his final term. Trudeau thought it was unacceptable that a mature, independent country such as Canada still required the United Kingdom’s parliamentary permission to amend its own Constitution. So in November 1981, he gathered all the premiers in Ottawa to try to hammer out an agreement. The idea was to develop a made-in-Canada amending formula for the Constitution, with an accompanying Charter of Rights and Freedoms.

The conference was deadlocked. Only premiers Bill Davis, of Ontario, and Richard Hatfield, of New Brunswick, shared Trudeau’s vision. The so-called Gang of Eight — all the other premiers — opposed the prime minister’s plan, arguing that the new package gave too much power to judges at the expense of elected legislatures.

Things looked hopeless: the Gang of Eight was adamant about including the notwithstanding clause, calling it a safety valve for legislatures that strenuously objected to a court decision. The prime backer of the clause was Alan Blakeney, Saskatchewan’s NDP premier, who feared that the courts might favour individual rather than union rights, which would wreak havoc with the labour movement.

It was only a late-night phone call from Davis to the prime minister that broke the logjam. Davis told Trudeau that the PM had to accept the notwithstanding clause, otherwise Ontario could no longer support the constitutional renewal package.

For decades, Davis kept mum about that phone call, except to tell aides at the time that when the history of the conference was eventually written, his late-night intervention might be recognized as key to forging greater national unity.

The practical effect of the call was obvious to Trudeau. Without Ontario’s support, the PM realized that the jig was up — he’d never be able to get the U.K. to support his plan with only tiny New Brunswick in support. And so, Trudeau put a considerable amount of water in his wine and accepted the notwithstanding clause.

It was a classic Canadian compromise. Our first ministers were saying that legislatures can legislate, and courts can overturn what they believe to be illegal laws — but ultimately, elected officials have the final say.

Section 33 imposes a five-year limit on the overturning of any court decision. After that, a legislature must vote to either renew its use of the notwithstanding clause or let it expire. The clause is also limited in what it can overturn: it does not apply to sections of the Charter dealing with democratic rights, mobility rights, or language rights.

Conventional wisdom in Ontario has always held overturning Charter rights to be so politically risky that no government would do it. After all, the Charter is one of the most popular things any Canadian federal government has created. And, in fact, no Ontario government had taken this risk until Ford’s did on Monday.

What Ford’s doing is perfectly consistent with what the framers envisioned. He is setting aside Charter rights — and taking the political risks inherent in doing so. That is his right. His political judgment ultimately rules. And the people of Ontario have the right to render their verdict on his political judgment in four years’ time.

That’s what the first ministers agreed to in 1981. Thirty-seven years later, and for the first time, Ontarians have finally seen their competing constitutional rights in action.

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