Doug Ford and the death of the legitimacy of the notwithstanding clause

It's been increasingly difficult to defend s.33. Ford's government is the final nail in that coffin.

Today’s announcement by the Ontario government that it will legislate CUPE school workers back to work before they even get a chance to strike, and that they will employ the Charter’s notwithstanding clause to do so, thereby immunizing the legislation from constitutional challenge, is, for me, the death knell for any coherent defence of the infamous clause.

Section 33 of the Charter can be used by Parliament or provincial legislatures to temporarily immunize specific laws from judicial review on rights grounds, with respect only to specific Charter provisions. To remain in place, the notwithstanding clause must be renewed every five years (the maximum life of a legislature).

As initially conceived, it is an entirely defensible constitutional innovation. Canada was the first Westminster-style parliamentary system to constitutionally entrench a bill of rights. A shift from parliamentary sovereignty to constitutional - some would say judicial - supremacy was a momentous shift in power to courts, especially the Supreme Court. Some of the Charter’s framers were rightly concerned about the judiciary having the final say on policies implicated by rights, including progressive premiers worried that a conservative court might wield the Charter to constrain the growth of the welfare state.

Moreover, Charter adjudication is fundamentally a philosophical and moral enterprise. The Supreme Court deals with hard cases for which the law rarely provides obviously ‘correct’ answers. Giving the final word over the complex policies at stake to a group of unelected judges raises not only unanswerable democratic concerns (the famed counter-majoritarian difficulty), but also institutional ones about how best to protect rights. The courts may indeed be in a good position to defend unpopular minorities but 1) they don’t always side with minorities, and sometimes parliaments do, and 2) the chances of judicial error, or even simple good faith disagreement about whether a court decision is wrong about how it balances competing rights, justifies the ‘safety valve’ of the notwithstanding clause, which needn’t be viewed as “overriding rights” so much as allowing legislatures to disagree with courts about how rights questions ought to be resolved.

Thus went the argument in favour of section 33, in theory, at least. The last five years have driven a stake through the heart of this defense in practice, however.

From Quebec’s Bill 21 and its systemically racist stomping on the rights of religious minorities and the National Assembly’s equally vicious attack on linguistic minorities under Bill 96 to the Ford government’s use to restore new third party election spending restrictions that had been struck down in a lower court decision, nakedly rights-infringing use of the notwithstanding clause (and without any meaningful legislative debate - the Ontario legislation received Royal Assent a mere six days after the court’s decision) belie any idea of principled disagreement with judicial decisions or question of balancing competing rights.

What today’s announcement demonstrates is that right-wing populist governments will leap at employing a constitutional provision that was previously so rarely used it had never even been invoked in Ontario until last year, all to stomp on the Charter rights of the lowest paid educational sector workers in the province. (At a time when their salaries have shrunk in absolute terms thanks to high inflation). It would be one thing if back-to-work legislation had been brought in after weeks of strike activity and school closures, during which good faith negotiations had broken down. But to invoke it to prevent a single day of strike action flies in the face of the very purpose of Charter rights. (We can debate whether we think ‘freedom of association’ necessarily includes a right to strike, but the Supreme Court has ruled as much and the Ford government offers no principled argument, only a populist one about ‘the children’ and preventing disruption).

I have, even in these recent years, always maintained a defense of the notwithstanding clause by arguing that many legitimate powers can be employed in crass, even immoral, ways by unscrupulous decision-makers, and that we can criticize individual uses of the clause while recognizing its utility as a safety valve against imprudent or ‘bad’ judicial decisions.

Well, no more. The main problem may well be that we elect utterly unfit people to public office, but since that seems to be the growing trend in the western world then it’s time to recognize we need better protection against those vile incompetents who claim to lead us. The notwithstanding clause may have been an attractive theoretical idea, but in terms of outcomes it has done far more harm than good.

So very publicly, I am here, changing my mind: the notwithstanding clause was a mistake, and we should unite in condemning its use.