By: Linda McKay-Panos
Reposted from LawNow 43(2) with permission
Recently, there has been much discussion of the use of the notwithstanding clause, which is section 33(1) of the Canadian Charter of Rights and Freedoms (Charter). Section 33(1) reads:
Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15.
Section 33(3) provides that a declaration made under section 33(1) shall cease to have effect after five years and section 33(4) states that a declaration may be re-enacted by Parliament or the legislatures.
Ontario’s Premier Doug Ford recently said he would use the notwithstanding clause to reduce the number of Toronto’s wards for the October 2018 municipal election. The Ontario Superior Court had struck down the legislation (Bill 5) as an unjustified Charter infringement on freedom of expression (See: City of Toronto et al v Ontario (Attorney General), 2018 ONSC 5151). The Ontario Court of Appeal granted a stay of the ruling, thus allowing the election to proceed without Premier Ford invoking the notwithstanding clause—at least until after the appeal is heard.
Also, after the CAQ (Coalition Avenir Québec) won the provincial election in Québec, newly elected Premier François Legault stated that he would invoke the notwithstanding clause to address Charter concerns with legislation that bans anyone in a position of authority (e.g., teachers, police officers, judges) from wearing any “conspicuous” religious symbols at work. If they do, they will be dismissed from their jobs.
These two examples raise the important issue of “What was the intended purpose of including the notwithstanding clause in the Charter and do these situations merit its use?”
Most agree that section 33 was intended as a safety valve to be used only rarely. Commentators thought that section 33 would be relied on to preserve our basic social and political institutions and to enable legislatures to overcome “unacceptable judicial determinations where there was popular support for doing so” (Marc-André Roy and Laurence Brosseau, The Notwithstanding Clause of the Charter (May 7, 2018) Library of Parliament (Roy and Brosseau)).
Section 33 has not been invoked very often. Québec was the first province to seek to use the notwithstanding clause. An Act respecting the Constitution Act, 1982, SQ 1982, c 21, re-enacted all Québec legislation that had been adopted before the Charter came into force, with a standard override clause being added to each statute. The SCC held in Ford v AG Quebec,  2 SCR 712 that while section 33 could be relied on in relation to several Charter rights in multiple laws, it could not be used retroactively (backdated). Québec subsequently passed Bill 178, which used the notwithstanding clause to restrict the posting of commercial signs in languages other than French. After the new law was criticized by the United Nations Human Rights Committee, then Premier Bourassa instructed the National Assembly to rewrite the law to conform to the Charter and the notwithstanding clause was removed.
The Saskatchewan government invoked the clause in 1986 as a preventive measure during a labour dispute with provincial government workers. More recently, Saskatchewan passed the School Choice Protection Act SS 2018, c 39, in which the legislature invoked the notwithstanding clause to effectively overrule the Court of Queen’s Bench ruling in Good Spirit School Division No 204 v Christ The Teacher Roman Catholic Separate School Division No 212, 2017 SKQB 109, which held that the government could not provide funding for non-Catholic students to attend Catholic separate schools.
The Legislative Assembly of Alberta in 2000 amended the province’s Marriage Act to define marriage as heterosexual and inserted the notwithstanding clause to override the Charter. It was widely thought that this bill was outside of Alberta’s jurisdiction because the federal government has jurisdiction over the capacity to marry. In any event, the government of Alberta did not renew the invocation of the notwithstanding clause after five years.
Section 33 is also seen as a safety valve preventing courts from acting as legislators, and thus compromising judicial independence and impartiality (Roy and Brosseau). Because political decisions are made by elected representatives, this removes politicization from the courts (Roy and Brosseau). Further, because Charter rights and freedoms are stated quite generally, and are susceptible to varying interpretations, courts could render judgments unforeseen by the drafters of the Charter, and section 33 could assist in those circumstances (Roy and Brosseau).
Critics of the notwithstanding clause argue it is inconsistent with the entrenchment of human rights and freedoms and fear that the majority may impose upon or limit minority rights unconstrained by the Constitution (Roy and Brosseau). In addition, section 1 of the Charter already provides an opportunity for governments to impose reasonable limits on rights if the limits can be “demonstrably justified in a free and democratic society” and permits courts to accommodate legislative goals that infringe on a guaranteed right or freedom (Roy and Brosseau). Finally, some argue that the notwithstanding clause will be invoked in cases where rights are most in need of protection. For example, Eugene Forsey argued that if the notwithstanding clause and the Charter were in force during World War II, it could have allowed the Canadian government to continue to forcibly inter Japanese-Canadians regardless of any fundamental rights they might have had (Roy and Brosseau).
Premier Ford followed the usual route for invoking the clause—after a court ruling. Former Prime Minister Jean Chretien, former Saskatchewan premier Roy Romanow, and former Ontario attorney general Roy McMurtry—all present at the negotiation of the notwithstanding clause in 1981—released a statement that condemned Ford for using the notwithstanding clause improperly. Most critics were particularly concerned about the timing—the reduction in seats occurred in the weeks prior to the election. Ford’s invocation of the notwithstanding clause has created concern that this will embolden other governments to use it. Once seen as a politically dangerous decision, using the notwithstanding clause may now be politically popular.
The Quebec situation is very theoretical. Legislation banning authority figures from wearing religious symbols would need to be introduced and passed. A court would have to declare the legislation as violating the Charter, and then Premier Legault would have to pass amended legislation using the notwithstanding clause. This would take at least two to three years. This proposal seems problematic. It appears to go to the very heart of rights that the Charter seeks to protect—minority religious rights.
It will be very interesting to see what occurs after the Ontario Court of Appeal rules on Bill 5 and whether the new Québec government will wade, once again, into the issue of invoking the notwithstanding clause. Further, Ontario’s, and possibly Québec’s use of the notwithstanding clause could spark discussions about amending the Charter to exclude the notwithstanding clause altogether.