Doug Ford's Ontario government says it intends to use the notwithstanding clause to keep a proposed law in place that would ban education workers from going on strike.Christopher Katsarov/The Canadian Press
Now we know why Doug Ford didn’t have time to appear before the Emergencies Act inquiry: he was busy preparing his latest assault on the Charter of Rights.
Bill 28, which prohibits education workers from striking, also prevents them from petitioning a court to restore the right just taken from them: that is, it invokes the constitution’s notwithstanding clause, exempting it from Charter scrutiny for the next four years.
It joins the Ford government’s two previous attempts to use the clause: the first, ultimately withdrawn, allowing it to rewrite Toronto’s municipal election laws midcampaign, the second permitting it to restrict “third parties” from advertising during provincial elections.
Add in the Legault government’s two invocations of the clause in Quebec, and that’s five actual or attempted uses of the constitutional override in Canada’s two largest provinces in the last four years.
In none of the five cases, moreover, had a court actually invalidated the laws in question, whether on sound or specious grounds: rather, the clause was invoked pre-emptively, to foreclose even the possibility of such a ruling. It is not from rogue courts or freak decisions that the governments of Canada’s two largest provinces would defend their people. It is the whole principle of judicial review. It is the Charter itself.
With each new use of the clause, the taboo against it, once near absolute, has lessened. The first time Mr. Ford mused about invoking it, he provoked a storm of outrage, probably hastening his decision to abandon the idea. But now? In three of Toronto’s four newspapers the story didn’t even make the front page.
All of which was entirely to be predicted – indeed it was predicted, by some of us. The insertion of the notwithstanding clause, the product of some particularly grubby last-minute bargaining during the 1982 constitutional round, was always a standing invitation to its use – a dagger, as the great constitutional expert Eugene Forsey described it, pointing at the heart of the Charter.
In fairness, its drafters genuinely never imagined it would be used like this. The clause was to be deployed in the most rare and urgent crises, if at all – not in response to every provincial hangnail. That was the clear understanding at the time – part of a careful balancing of concessions, not only between those who wanted ironclad rights guarantees and those who preferred parliamentary supremacy, but also between the federal and provincial governments.
The 1982 Constitution was, in the main, a broadly, even radically, decentralizing document, one that granted a long list of powers and prerogatives to the provinces in general, and Quebec in particular. The only thing the feds got in return was the Charter. And now that is gone, or halfway to it.
For make no mistake, this will not be the last we hear of notwithstanding. Not only will Ontario and Quebec conclude that there is no longer any price to be paid for trampling over the rights of unpopular minorities and individuals. Other provinces – Alberta? Saskatchewan? New Brunswick? – will have absorbed the same lesson.
A Charter that applies only if and when governments decide it should – a constraint that does not bind – is as good as no Charter at all. Yet that is where we are headed, if nothing is done.
Can something be done? Absolutely. Minority and individual rights in this country did not begin with the Charter, or the courts. In the first decades after Confederation their protection was the explicit responsibility of the federal government: the original constitutional bargain. And the instrument through which it gave effect to this protection was the power of disallowance.
If the 1982 bargain is now off – if we are back to the days before the Charter – if minority and individual rights are once again at the mercy of provincial governments, then it falls to the federal government to resume its former role as their guarantor, at least until the notwithstanding tiger can be returned to its cage.
That the disallowance power has not been used in some time does not mean, as some allege, that it has become void. For such a convention to exist the federal government itself would have had to formally renounce it. No federal government has done that.
No doubt its revival would cause a flap, and certainly it should be considered a last resort. But the alternative is simply to stand by while the Charter dissolves in front of our eyes. Surely the Prime Minister, of all people, will not wish to preside over the dismantling of his father’s proudest legacy.
The nuclear option? The notwithstanding clause was supposed to be the nuclear option. Only the bombs are going off with such regularity now we barely notice them. It’s time for a little constitutional deterrence.