Ontario Premier Doug Ford sits in the Ontario Legislature during Question Period on Nov. 1, as members debate a bill meant to avert a planned strike by 55,000 education workers.Frank Gunn/The Canadian Press
Ontario Premier Doug Ford’s declaration that he will override constitutionally protected labour rights is sparking a widening debate, with Alberta calling on Ottawa to opt out of a Supreme Court ruling that applies to sex offenders, and others worrying its use will grow more frequent.
The 1982 Charter of Rights and Freedoms contains an opt-out clause that gives elected governments the last word, instead of unelected judges. Mr. Ford’s Progressive Conservative government introduced legislation this week to impose a contract on education workers, and to bar them from striking, and invoked the clause so the law would not be struck down by the courts.
It is the first such use of the notwithstanding clause in the area of labour rights since the Supreme Court of Canada ruled in 2015 that the right to collective bargaining and to strike are protected by the Charter of Rights. “Clearly the arc bends increasingly toward workplace justice,” Justice Rosalie Abella wrote then, as a majority tossed out three 1987 decisions rejecting labour rights.
But as courts expand rights, governments have become more aggressive in using the notwithstanding clause to fight back.
“Governments are less and less afraid to use it,” said Pierre Thibault, a constitutional specialist at the University of Ottawa law school. “I really don’t know where it will end up.”
The 40-year history of the Charter has been one in which judges have often defended the vulnerable and the unpopular – striking down prostitution laws, legalizing medical assistance in dying and just last Friday killing a law that made registration of all sex offenders mandatory.
All those involved federal legislation, and the federal government has never invoked the notwithstanding clause. But Mr. Ford has done so three times in four years. Quebec inserted the clause in two recent laws, Bill 21 on religious symbols and Bill 96 on language; Saskatchewan invoked it in 2018 to fund non-Catholic students at Catholic schools and New Brunswick invoked it in 2019 (and later withdrew it) over vaccines.
On Tuesday, Alberta Justice Minister Tyler Shandro called on the federal government to use the notwithstanding clause to override the Supreme Court’s 5-4 ruling Friday on mandatory registration of sex offenders. “The Supreme Court’s decision will make our country a more dangerous place,” Mr. Shandro said in a statement.
Justice Minister David Lametti, in an e-mail to The Globe and Mail from his press secretary Chantalle Aubertin, replied that the use of the notwithstanding clause is very serious, since it suspends legal protections guaranteed by the Charter. He said he is reviewing the Supreme Court decision and could rewrite the registry under parameters set down by the court.
The notwithstanding clause is part of the delicate balance of the Charter of Rights and Freedoms. Section 1 allows for governments to impose limits on rights if it can justify them to judges as reasonable in a free and democratic society. Section 33, the notwithstanding clause, allows for governments to override the courts, or pre-empt them as Mr. Ford has done, but only for a five-year period, after which the override may be renewed. Thus, the government is held continually accountable for its use.
Howard Anglin, who was a principal secretary to former Alberta premier Jason Kenney, said he supports Mr. Ford’s use of the clause.
“The government has made a reasonable policy choice weighing the competing interests of students and the teacher’s union, and it is entitled to use its powers under the Charter to ensure that its policy is implemented smoothly,” he said.
Even some who endorse the notwithstanding clause’s use in certain cases question the wisdom. Jonathan Denis, a former attorney-general of Alberta, said he supports Mr. Shandro’s call for Ottawa to use the override for the sex-offender registry ruling. But in the labour context, he called its use “politically extraordinary.”
“This could also come back to bite him if he runs for a third term, as I could see this emboldening unions and their members against him in the next general election,” he said.
John Whyte, who was an adviser to former Saskatchewan premier Allan Blakeney, a New Democrat, at the talks in 1981 that produced the Charter, called Mr. Ford’s use “horrible.” And he said the three Western premiers (the other two at the time were Peter Lougheed of Alberta and Sterling Lyon of Manitoba) who pushed for the notwithstanding clause as a condition for signing on to the Charter were mistaken.
“They were blind, they were wrong. Blakeney was naive to a phenomenal degree about the positive goodness that would come from putting responsibility back on the electorate.”
Prof. Thibault said he would rather see governments go to court to try to justify, under the Charter’s Section 1, any limits they impose on rights, if challenged.
Peter Biro, a lawyer and founder of a think tank called Section 1, said the Ontario Premier is “driving a dagger into the heart of fundamental labour rights and foreclosing a Charter challenge.” He wants the notwithstanding clause repealed, or at least amended so it can’t be used pre-emptively.