After unsuccessful negotiations, the Ontario government imposed a collective agreement on more than 50,000 education workers on Monday and prevented them from striking, both unconstitutional measures. The organization representing the workers, the Canadian Union of Public Employees (CUPE), however, will not be able to succeed in court since the province has invoked the clause allowing it to derogate from the Canadian Charter of Rights and Freedoms. The province thus wants to prevent the interruption of classes.
This is Prime Minister Doug Ford’s second use of the clause since he came to power in 2018, despite threatening to use it a third time. His government’s decision to use it is part of a five-year trend in favor of the derogation in Ontario and its neighboring province, Quebec: Doug Ford is to date the only Ontario premier to have invoked the clause , while François Legault has used it twice since 2019. The last use was in 1988.
Experts consulted by The duty note, however, differences in the motivation of the provinces to use the notwithstanding clause and the response to their decision.
Unlike Quebec, which uses the clause for a specific issue, ie identity issues, Ford uses it “all the way,” observes Geneviève Tellier, professor at the School of Political Studies at the University of Ottawa. Doug Ford “is taking action in areas where citizens are not so engaged,” notes Peter Graefe, a professor of political science at McMaster University. On the other hand, the Coalition avenir Québec (CAQ) uses it to respond to electoral promises, among others, he continues.
These different motivations also partly explain why François Legault’s decision to use the provision to pass bills on the secularism of the state and the protection of French aroused the dissatisfaction of certain Canadians outside Quebec. , suggests former minister Benoît Pelletier. “Many tear their shirt when Quebec invokes the clause”, notes Geneviève Tellier. But the same scenario did not take place outside of Ontario when Doug Ford did it, analyzes the professor.
Two proactive approaches
If their motivations diverge, their modus operandi is similar, an alarming situation for some experts, but legitimate according to others. To impose the contract on workers in the education sector, the Ford government warned that it would use the notwithstanding clause even before the issue was debated in court. The CAQ had operated in the same order when it passed Bills 21 in 2019 and 96 in 2022.
Richard Mailey, director of the Center for Constitutional Studies at the University of Alberta, laments that preventive recourse to the notwithstanding clause has become frequent recently. “The frequency with which governments resort to it, especially in a preventive manner, suggests that a new political culture is emerging in Canada,” argues the researcher. This culture would be less attached to the idea that the court should be seen as “trustworthy guardians of the constitution”, he explains.
Preventive use is not a problem for Benoît Pelletier, who teaches law at the University of Ottawa. The latter opposes the decision of the Ford government to use the clause in the circumstances, while negotiations with the union could continue, but not in principle to have recourse to it before the courts decide. “The court can still take up a case,” he says, and come to the conclusion that rights have been violated.
Policy response
In the absence of legal remedies to invalidate the bill, the unions will have to go through politics to get their message across. But even if they have the ammunition to attack, the two main opposition parties — the New Democratic Party and the Liberal Party — have no leader. “I don’t think they are ready to challenge the Conservatives,” assesses Geneviève Tellier.
Thomas McMorrow, a professor of legal studies at Ontario Tech University and a graduate of McGill University, however, believes that Ontarians need to be more engaged in this kind of debate if the government is to feel the need concern for constitutional rights. During the last provincial election, in June, only 43% of voters expressed their right to vote. “Courts cannot be the only ones concerned with constitutional rights,” thinks the professor.
The dissatisfaction could also come from the voters of the ruling party. Peter Graefe, a professor at McMaster University, observes that in Ontario and Quebec, as elsewhere in the world, “voters are less rational than one thinks” and many of them follow their favorite political party like a sports team, supporting them no matter what they decide. In Ontario, concluded the professor, “the fact of having violated the rights of some people will not change the minds of voters”.
This story is supported by the Local Journalism Initiative, funded by the Government of Canada.