Not another time.
Posted at 9:00 a.m.
It is a sad and disturbing trend: over the past four years, governments have increasingly used the notwithstanding clause to set aside the rights and freedoms guaranteed by the Charters. In addition, they use it preventively to cut court proceedings short.
The last example is ridiculous: in Ontario, the Ford government passed a law last Thursday with the notwithstanding clause to… impose a contract of employment on 55,000 unionized employees and prevent them from calling a day of strike in the schools Friday.
The right to strike is guaranteed to most professions (except for essential services such as the police and fire departments) by the freedom of association in section 2(d) of the Canadian Charter. Rather than trying to reach an agreement with the unions or debating in court the reasonableness of his law, Doug Ford preferred to use nuclear weapons: the notwithstanding clause.
“We live in a democracy and people have spoken clearly [aux dernières élections] “, is justified Doug Ford.
This is a very simplistic and dangerous view of our rule of law, our democracy and the role of the courts.
A healthy rule of law is not just about elections every four years. It is also the protection of the rights and freedoms which are the fundamental principles of our society. One should not cavalierly dismiss the rights and freedoms of some — particularly those of minorities — on the pretext that it is the “will” of the majority.
Of course, no right and freedom is absolute. Any right or freedom can be reasonably restricted if the legislator has a good reason (this is the justification clause in article 1er of the Canadian Charter). But this very important debate must take place before the courts. By using the notwithstanding clause, the legislator avoids it. This week, Doug Ford showed he doesn’t care about the rights and freedoms of Ontarians. It’s dangerous. Even more if it becomes a trend across Canada.
From 1982 to 2018, the notwithstanding provision was used in practice to affect rights only once, by the Bourassa government in 1988 to override a Supreme Court judgment on commercial signage. Five years later, Quebec changed its sign law to go along with the Supreme Court, removing the notwithstanding provision that was no longer needed.
(The Lévesque government regularly invoked the notwithstanding clause of the Canadian Charter between 1982 and 1985 to protest against the unilateral patriation of the Constitution, but this had no practical effect since the Quebec Charter continued to apply.)
Since 2021, Ontario has used the notwithstanding provision twice. To restrict campaign spending by unions and third parties. Then this week to settle a labor dispute with 55,000 education employees. It didn’t work as expected: several unions defied the law and school boards chose to close schools on Friday. We’ll see what happens on Monday.
Quebec is not much better, having used it twice during the CAQ’s first mandate. The National Assembly should not have used the notwithstanding provision preventively for “Law 21” (the secularism of the state) and “Law 96” (French).
In the long term, it is dangerous to trivialize the use of the notwithstanding clause. Whether for questionable legislative reasons (a one-day strike) or important ones (French and secularism).
Parliament should use the notwithstanding clause only as a last resort, to overturn an important and clearly unreasonable judicial decision.
When you trample on rights and freedoms by using the notwithstanding clause lightly, you know when it starts. Not when it ends.