Wanderings – It’s time to axe the Notwithstanding Clause

Imagine living in a country where the government can legislate away the rights of minority groups, already enshrined in the constitution, for up to five years. This country is a place where a subset of politicians can vote to remove individual and collective rights for any reason, just because the job of properly governing is difficult or not politically expedient. It’s not that difficult to imagine. Welcome to Canada.

Ontario Premier Doug Ford is just the latest in a string of provincial government leaders to use the Notwithstanding Clause, more formally known as Section 33 of the Charter of Rights and Freedoms. It has been used 25 times by provincial governments since enshrined in the constitution in 1982 – 26 if you include the recent labour trouble with Bill 28, which has since been repealed.

Quebec has used the constitutional lever, or better named “sledgehammer”, 17 times since the constitution was repatriated. Section 33 can only be used to take away some rights, namely legal and equality rights, and fundamental freedoms. It was a compromise by the provinces and federal government to get the Charter passed, and it is an error that needs to be fixed by removing the Notwithstanding Clause.

Removing individual rights is the easiest thing a provincial (or federal) government can do to pass its legislation. It is a heavy-handed move. Ontario has done it only twice before, both during Doug Ford’s premiership. Many other provinces and territories have done this too. Quebec did this several times to deal with teacher and government worker pensions, and religious teaching in public education. Most recently it was used to block public servants from wearing religious symbols in Quebec institutions in 2019. And in 2022 legislation using Section 33 was passed to strengthen the use of French on signs of non-French businesses.

Political campaigning by third parties in provincial elections in Ontario, and the size of Toronto’s municipal government ,were the two successful instances that Ford used Section 33 to his advantage.
Ford is not the first premier to try to use the Notwithstanding Clause to impose a wage agreement on striking education unions. The Saskatchewan government attempted this in the 1990s. Alberta used Section 33 to temporarily prevent gay marriage.

Section 33 was developed as a compromise to push through the Charter when the constitution was repatriated. It was seen as a way to ensure the federal government did not overstep provincial government’s jurisdiction. It also was meant to help limit possible court decisions which expanded rights in the Charter. It was not intended to be used as a contract negotiation tool, or as a way to limit already defined rights in the constitution. The clause should not have been agreed to because it is extremely easy for governments in power to use.

All governments that have used or attempted to use the Notwithstanding Clause were majority governments. Provincial governments are unicameral, meaning there is no check or balance to legislation that is passed that uses legal means to take away guaranteed rights. A majority government elected by a statistical minority of residents can run rough-shod over guaranteed rights with the stroke of a pen, a whipped vote, and royal ascent. In Ontario, it took less than a week in each instance to do this. No government should have this power.

It was interesting to read comments online or talk to people who were for the recent Ford government’s Bill 28 which legislated a contract on 55,000 education workers and took away their right to strike. Many Ontarians supported this bill, yet railed against mask and vaccine mandates which imposed on their “freedoms”. It’s important to note that a contract was imposed through legislative means and a constitutional lever that allows rights to be overridden used. Public health legislation already in place did not use the Notwithstanding Clause. The constitution was not walked all over. Cheering on the former while shaking your fist in protest to the latter is hypocritical.

Little talked about is the fact that the federal government can also pass legislation that uses the charter to take away rights. No federal government has done so, and rarely has the federal government challenged a charter use. It should – like in the recent Quebec secularism and language laws – intervene through the courts to challenge the Quebec government walking over minority religious and language freedoms.

No government should have the right to remove constitutionally guaranteed rights. No Canadian should sit ideally by while this is allowed to happen. What right could be next? It all depends on who sits in the Premier’s chair.

Originally published in the November 16, 2022 edition of The Leader.