The notwithstanding clause was included in the 1982 legislation that patriated the Canadian constitution. That document included a Charter of Rights and Freedoms (strongly desired by then Prime Minister Pierre Trudeau), which essentially codified the customs and conventions – the common law – that had long been recognized by democracies as part of their unwritten constitution. But the Charter was unpopular with most provincial governments and the notwithstanding clause was added to temper their opposition. It was widely believed at the time that support for the Charter was so strong that it would deter politicians from excessive use (and abuse) of the notwithstanding clause.
In practice, however, it could be argued that our longstanding rights and freedoms – once based on common law – are now less secure because the much-heralded Charter can be neutered by any provincial government (or the federal government for that matter) through the simple expedient of declaring that particular legislation should stand notwithstanding the Charter (an action limited to a five year period, subject to renewal). Before the Charter, government actions that appeared to undermine basic rights and freedoms could be challenged in the courts. If such actions were rejected by the courts (subject to whatever judicial appeals might be pursued), a government then had to accept that decision. It could not declare that “notwithstanding the court ruling” its legislation will proceed nonetheless. To state such an option is to illustrate how outrageous it would be.
Unfortunately, use/abuse of the notwithstanding clause is on the increase. Quebec has been by far the most frequent user of this “escape clause,” most recently in connection with a very controversial initiative to amend a section of the Canadian constitution to recognize its nation status and French as its sole official language.
Ontario’s Misuse of the Notwithstanding Clause
Ontario has made plans to employ the notwithstanding clause twice, but not for the kind of fundamental, if worrisome, initiatives pursued by Quebec. Instead it has been called upon as part of Premier Ford’s Trumpian temper tantrums when there have been court decisions unfavourable to arbitrary actions his government has taken. In the first instance, a court ruled against legislation that cut the size of Toronto city council in half two months after campaigning for the upcoming municipal election had taken place and only one day before the closing of nominations for that election. When that decision was stayed by an appeal court, Ford didn’t pursue the notwithstanding clause and the election was completed with the reduced council. The second, very recent, instance, arose when a Superior Court judge ruled against the government’s extension of restrictions on spending by third parties (essentially interest groups/pressure groups) from six months to twelve months. The normal recourse would have been for the government to appeal this decision and attempt to justify why it needed to double the period for limiting third party spending. Instead, Ford has recalled the Ontario Legislature and will impose this change by using the notwithstanding clause to get around infringing on freedom of expression.
The Overlooked Underlying Issue
It is unfortunate that Ford’s heavy-handed intervention has directed attention away from the legislation itself and the issue of restrictions on spending by third parties. There are, in fact, good reasons for such restrictions, as a comparison with the situation in the U.S. makes abundantly clear. A Supreme Court ruling there opened the door to unlimited spending by third parties, including Political Action Committees – with the result that big money dominates the American political scene. We are fortunate to have rules governing how much political parties and candidates can spend during an election campaign and how much “third parties” can spend in the period leading up to an election. The latter restrictions on freedom of expression are a reasonable compromise to mitigate the excessive influence that otherwise can be wielded by groups with money. What was not reasonable was Ford’s attempt to extend the restrictions so that third parties like unions, teachers, and environmentalists would have less time to criticize his government’s actions (or lack thereof).