Ford government should clearly explain rationale for invoking notwithstanding clause

Posted on September 12, 2018 in Governance Debates – Opinion/Editorials
Sept. 11, 2018.   By

In the run-up to the 2006 federal election, Prime Minister Paul Martin surprised observers by announcing that if the Liberals were re-elected, they would move to repeal section 33 of the Canadian Charter of Rights and Freedoms, also known as “the notwithstanding clause.”

The section, which permits the legislature to insert a clause into a law stating that the law is to “operate notwithstanding” certain Charter rights, is a controversial aspect of the Constitution because on at least one reading, it permits the legislature to enact laws that infringe certain constitutional rights without the providing a legal justification for doing so.

The Liberals were ultimately defeated in the election and so Martin’s pledge came to nothing. But for a moment, the public conversation turned to the merits of the notwithstanding clause as a feature of Canada’s Constitution.

Fast-forward to 2018, and the notwithstanding clause is the subject of conversation once again. In August, the Better Local Government Act received royal assent. The act dramatically cut the size of Toronto City Council during an ongoing municipal election.

Predictably, the law’s constitutionality was challenged, and in a ruling this week, Justice Belobaba struck down the act as an unjustified violation of freedom of expression. Premier Doug Ford has announced that his government intends to appeal the ruling and that it will also seek to invoke the notwithstanding clause to shield the act from constitutional attack.

There are two theories of the notwithstanding clause. The first and most widely accepted theory is that, as law professor Lorraine Weinrib puts it, the clause allows the legislature to “suppress certain rights for a limited period subject to certain formalities.”

The second is that when the clause is invoked following an adverse court ruling, the government is taking the position that its legislation is constitutional on a different interpretation of constitutional rights than the one provided by the court.

This second theory applies with particular force when there are competing constitutional rights at stake and political actors and courts must find a way to reconcile them.

It is at least plausible that the Ford government’s plan to invoke the notwithstanding clause is informed by its view that the Better Local Government Act is constitutional.

Whatever its motivations, however, one thing is clear: the use of the notwithstanding clause is exceptional. In fact, some scholars have suggested that the stigma around its use has rendered it effectively inoperative.

In choosing to invoke the notwithstanding clause, therefore, Ford is defying convention. But there’s more. Ford has indicated that he will use the notwithstanding clause again if necessary.

This raises the spectre of the Ford government using the clause as a matter of routine in response to adverse court rulings. This should be cause for concern. Whatever one thinks of the use of the notwithstanding clause, few scholars would advocate for government-by-notwithstanding-clause. Such an approach would seriously undermine constitutional rights protections.

Any use of the notwithstanding clause should be preceded by serious, reasoned deliberation, both within the executive and in the legislature. The Ford government should clearly explain its rationale for seeking to invoke the clause.

Does it believe that the Better Local Government Act is constitutional on a reasonably defensible interpretation of the Constitution? Does it believe that some principle justifies overriding constitutional rights in the particular circumstances of this case?

Justice Belobaba found that the objectives of the Better Local Government Act were “improved efficiency and overall cost savings.” He went on to conclude that for the purposes of the constitutional analysis, these were not “pressing and substantial” objectives.

This is a remarkable finding given that judges routinely find rights-infringing legislation to be motivated by an objective of some significance. The court’s conclusion heightens the need for some explanation. Opposition MPs should vigorously test the rationale provided by the government.

Finally, attempts to invoke the notwithstanding clause as a matter of routine should be strenuously resisted. Its persistent use would undermine not only long-settled assumptions about the role of the notwithstanding clause in our constitutional order, but more importantly, our core constitutional commitments.

Paul Martin may have put it too strongly when he suggested in 2006 that the notwithstanding clause should be abolished because “courts shouldn’t be overturned by politicians” on constitutional matters. But politicians must proceed cautiously when they do.

Vanessa MacDonnell is a constitutional law professor at the University of Ottawa.

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