The notwithstanding clause isn’t meant to be safety net for political blundering

OPINION: There are arguments for having Section 33 in our Constitution — undoing the errors of a government that can’t seem to shoot straight isn’t one of them
By John Michael McGrath - Published on Jun 11, 2021
Premier Doug Ford’s government has invoked Section 33 to pass campaign-finance legislation. (Frank Gunn/CP)

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There are so many things one could say about the Doug Ford government’s latest manoeuvre — invoking Section 33 of the Charter (the “notwithstanding clause”) to pass campaign-finance legislation. And many of them already have been said. However, one thing seems to have largely escaped notice: once again, the Progressive Conservatives are facing the consequences of their own legislative missteps.

That’s not spelled out in black and white in the court decision, issued on Tuesday by Justice Edward Morgan in the Ontario Superior Court. That’s not exactly the kind of sentiment a neutral and impartial jurist would share, regardless of context. But what does seem clear from Morgan’s decision is that the government lost a decisive court battle in large part because it couldn’t seem to buttress its own arguments with sufficient evidence.

TVO Explainer: What is the notwithstanding clause?

The core part of Morgan’s decision focused on whether it was consistent with Canada’s protection of free expression, as embodied in Section 2 of the Charter of Rights and Freedoms, to extend spending limits in Ontario’s pre-election period from six months to 12. Spending limits on what political groups can say at any time is undeniably a limit on free expression, but the Supreme Court has previously found that some limits can be justified by the competing interests of maintaining equality and fairness in elections — to prevent the voices of marginalized groups from being overwhelmed by money and power.
​​​​​​​​​​Somewhat amusingly in this context, the key Supreme Court decision is Harper v. Canada from 2004, issued after not-yet-prime-minister Stephen Harper fought against third-party spending limits at the federal level and lost. Conservatives nearly a generation ago fought on behalf of unrestricted third-party spending; today, they’re invoking the notwithstanding clause to stop it.

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Back to the present: Morgan decided that the extension of spending limits from six months to 12 was the kind of infringement of free-expression rights that couldn’t be saved by other concerns: the egalitarian impulse couldn’t, on its own, permit the government to limit free expression for fully one quarter of the political calendar — one year out of the four-year election cycle created by Ontario’s fixed-election-date law. The government needed to demonstrate that, to execute its policy choices, it had picked means that minimally impair Charter rights, and Morgan disagreed with the assertion that a 12-month limit was a minimal impairment.

But it’s worth noting that Morgan didn’t reject the Tories’ arguments wholesale: he simply noted that the evidence the government presented was weak and in some ways contradictory.

“[T]he experts produced by counsel for the Attorney General … both opined that a 6-month period of pre-writ regulation was reasonable. Those same experts have now opined that the new 12-month period introduced by Bill 254 is ‘also reasonable’,” Morgan wrote in his decision. “Without meaning to stress the obvious, it is hard to see how 12 months is minimal if 6 months will do the trick.”

Others, including Liberal leader Steven Del Duca and the Canadian Civil Liberties Association’s executive director Michael Bryant (himself formerly a Liberal attorney general of Ontario) argued that the Tories had other options to respond to Justice Morgan’s decision. They could have sought a stay of his ruling while they appealed. But if we’re going to engage in speculative fiction, there’s another alternative the Tories could have pursued: being better at their jobs and having written the legislation more carefully in the first place.

While the Tories might be forgiven for thinking that a courtroom is the only place where they have to defend their legislative and political choices (given how many times they’ve lost in court), this is actually part of what the legislative process itself is for. It’s not unusual for the government to want to make policy that could infringe on the Charter or other parts of the Constitution. But if a premier wants to do that, the smart play is to use the debates at Queen’s Park — particularly the committee stage — to establish the evidentiary record for why the government is choosing to do it one way and not another.

The law Morgan struck down this week (Bill 254, the Protecting Ontario Election Act) received two days of testimony in committee hearings in the middle of third wave of COVID-19 before being quickly passed by the committee and rushed back to the legislature for third reading and Royal Assent two weeks later. I can’t guarantee that, if the Tories had taken their time, gathered more expert testimony to support their choices, and had a more complete debate, the law would have withstood Morgan’s scrutiny. But it’s pretty obvious that Plan A failed as badly as it’s possible to fail.

Which brings us to the notwithstanding clause, currently being horsewhipped through the legislature in the text of Bill 307, the Protecting Elections and Defending Democracy Act, even more briskly than Bill 254 was. There are entirely principled reasons to have the notwithstanding clause in the Constitution — courts get things wrong sometimes, and the price of getting the Charter in the first place was giving Canada’s legislatures the power to override the courts, in some cases and within limits.

That’s not what’s happening at Queen’s Park this weekend. A government that didn’t do a good job of court-proofing one of its key pieces of legislation — because it seemingly couldn’t be bothered to try very hard — got smacked down by a court in an entirely predictable fashion, and now it’s using the notwithstanding clause to give itself a mulligan. Even if you support reasonable restrictions on third-party spending in our elections — as I do — nobody in Ontario needs to pretend there’s any higher principle involved here. It would be appropriate, however, for people to keep this chapter in mind when they mark a ballot next year.

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