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Doug Ford vs. Toronto council: When has the notwithstanding clause been used before?

Elisabetta Bianchini
Yahoo Canada News
Ontario Premier Doug Ford speaks to reporters, in Toronto, on Monday, September 10, 2018. THE CANADIAN PRESS/Christopher Katsarov.

The story of Doug Ford versus Toronto city council took a new turn on Monday when the Ontario premier said he plans to use the notwithstanding clause in the Canadian Charter of Rights and Freedoms to cut the number of councilors in the city from 47 to 25.

The announcement followed Superior Court Justice Edward Belobaba’s decision that the Ford government “crossed the line” with its plans to cut the size of Toronto’s city council.

“The matter before me is unprecedented,” Justice Belaboba wrote in his ruling on Monday morning. “The Province has clearly crossed the line.”

“I believe this decision is deeply concerning and wrong and the result is unacceptable to the people of Ontario,” Ford said in his announcement.

Reporters swarm around Justice Minister Pierre Elliot Trudeau after he was sworn-in in Ottawa, Ontario on Tuesday, April 4, 1967. Mr. Trudeau has been Prime Minister Pearson’s parliamentary secretary since January 1966. THE CANADIAN PRESS/Chuck Mitchell

The emergence of the notwithstanding clause

Section 33 of the Canadian Charter of Rights and Freedoms, the notwithstanding clause, has been controversial since with acceptance in 1981 during the Federal-Provincial Conference of First Ministers. It allows Parliament or a provincial legislature to override charter rights, with a lifespan of five years or less.

This clause emerged when first proposed by Saskatchewan in 1980 in the Federal-Provincial Continuing Committee of Ministers Responsible for Constitutional Affairs. It was seen as a “compromise” for those for and against a Charter of Rights.

In 1981, during the First Ministers’ Conference, former federal Minister of Justice, Jean Chrétien, and the Attorneys General of Ontario and Saskatchewan, Roy McMurtry and Roy Romanow, drafted a Charter of Rights, which included a notwithstanding provision applicable to fundamental freedoms, legal rights and equality rights. Then Prime Minister Pierre Trudeau agreed to the extension of the notwithstanding provision to fundamental freedoms, adding that it would be subject to a five-year sunset and re-enactment clause.

Although all governments, except Quebec, agreed to the constitutional accord with the notwithstanding clause, many participants and parliamentarians expressed reluctance or anticipated that it will rarely be use.

“I must be honest and say that I don’t fear the notwithstanding clause very much,” former Prime Minister Trudeau said after the First Ministers’ Conference. “It can be abused as anything can, but the history of the Canadian Bill of Rights Diefenbaker had adopted in 1960, it has a notwithstanding clause and it hasn’t caused any great scandal (sic).”

“I am concerned about the fact that there are provisions for opting out in important areas,” Richard Hatfield, then Premier of New Brunswick said. “I want to give you an undertaking that I will do everything possible to urge the Legislature of New Brunswick not to use that opportunity, consistent with my firm view that if we are going to have rights, they must be shared by all Canadians, regardless of where they live.”

“What the Premiers and Prime Minister agreed to is a safety valve which is unlikely ever to be used except in non-controversial circumstances by Parliament or legislatures to override certain sections of the Charter,” Chrétien said. “The purpose of an override clause is to provide the flexibility that is required to ensure that legislatures rather than judges have the final say on important matters of public policy.”

When has the notwithstanding clause been used before?

Quebec 

Section 33 debates have since crept up in Quebec language law. Following the 1981 constitutional accord, Quebec expressed its strong opposition by adding a notwithstanding clause in every piece of legislation put before the National Assembly between 1982 and 1985.

The province used the notwithstanding clause in 1985 after the Supreme Court of Canada ruling in the Ford and Devine cases on the language of commercial signs. The court ruled that preventing the use of languages other than French was not a reasonable limit to freedom of expression. The province invoked the notwithstanding clause to keep French signs outside establishments and bilingual signs inside.

Yukon and Saskatchewan

Outside Quebec, the notwithstanding clause has been brought up three times. The first was in the approval of the Yukon’s Land Planning and Development Act in 1982, which was never proclaimed to force.

The notwithstanding clause was also referenced in provincial back-to-work legislation the Saskatchewan Court of Appeal said was contrary to section 2(d) of the Charter (freedom of association). But the clause was never actually used because the Supreme Court of Canada allowed the province’s appeal, stating the back-to-work legislation did not violate the Charter.

Alberta

In 2004, a Supreme Court of Canada ruling verified that the federal government has exclusive jurisdiction to decide who can marry in Canada. Alberta’s Minister of Justice and Attorney General, Ron Stevens responded by saying if the federal government legalized same-sex marriage, the province would invoke the notwithstanding clause to maintain a same-sex marriage definition in Alberta.

The federal government then adopted the Civil Marriage Act in July 2005, to define marriage as “the lawful union of two persons to the exclusion of all others.” The Act includes a provision that section 33 cannot be used to deny the right of same-sex couples to marry.

An Ontario first

If Ford does in fact use the notwithstanding clause to push forward Ontario’s Better Local Government Act, this will be the first time the provision is used in the province.

“The Better Local Government Act will reduce the size and cost of government while reducing dysfunction at City Hall,” Ford said. “The people who are most vocal and fighting this move are a small group of left-wing councillors looking to continue their free ride on the taxpayers’ dollar and a network of activist groups who have entrenched their power under the status quo.”

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