When someone mentions Section 33 of the Canadian Charter of Rights and Freedoms, you might be wondering what that is? However, if we provide the more commonly known name, the “notwithstanding clause”, it certainly becomes more recognizable considering the dramatic controversy surrounding the intent to use the clause over the past couple months in Ontario by Premier Doug Ford.
The recent controversy over this specific section of the Charter rose out of Ford’s Better Local Governance Act, which ordered the Toronto City Council to reduce the number of wards from 47 to 25 in the middle of municipal election season. Ford stated that the act was a cost-cutting measure and a reaction to the failure of the current council to “act on the critical issues facing the city.” The Act was later struck down in Ontario Superior Court as unconstitutional, stating that the Act infringed on the voter’s right to an election and “effective representation” and that the change in the middle of campaign season infringed on the candidate’s freedom of expression. In reaction, Ford announced his intent to use the clause, which if passed, would have been the first time the clause would be invoked in Ontario. However, before that could occur, the Court of Appeal in Ontario stayed the Superior Court’s judgement, allowing the province to carry out the 25 ward structure for Toronto.
So what does the Notwithstanding Clause specifically allow? Section 33 of the Charter specifically allows Provincial legislatures to override certain portions of the Charter for five years, with that time period being the maximum amount of time the Parliament or Legislature may sit before an election must be called. Once that time expires, the legislature may pass another bill that may reset the timer. Consequently, the logic that stems from that is that if the people wish for the “notwithstanding” law to be repealed, they have the right to elect representatives to carry out such a demand.
On a legal basis, Ford has an undeniable right to table the possibility of using the notwithstanding clause. While the usage of the clause is unusual in Ontario, one only needs to hop across the border to Quebec, where the relatively frequent use of the clause illustrates the relative ease in which it can be invoked. For example, the clause was inserted into every piece of legislation between 1982 and 1985 and was used in 1988 in reaction to a Supreme Court of Canada decision stating that a law prohibiting the use of any language other than French on outdoor commercial signs was unconstitutional. Consequently, as long as the Provincial Legislature passes the bill, there is generally no other barrier towards its invocation.
Although the law does not present any major bar towards the clause’s imposition, Ford’s threat of utilizing the clause is akin to political “blackmail”, directly offensive to any sense of accountability of even an implicit respect for the Rule of Law. As best stated by Justice Belobaba, the Provincial Government’s reasons for utilizing the clause was “crickets” – there was little to no logical reasons for doing so. Consequently, by committing to such egregious threats, Ford’s actions fly directly in the face of accountability or Rule of Law, as it fails to provide any respect to the municipal council or any sense of consultation, prior thinking, or detailed reasoning that would respect the rights of Torontonians. Evidently, Ford’s actions become the new tarnished source and citation for the next invocation of the clause.
While the use of the clause has historically been recognized as an extreme measure, Ford’s usage of the clause without any evidently logical reasoning is on another level; it could be well regarded as an abuse of power and sets a dangerous precedent for a lack of implicit political accountability. One could even say that it completely neglects an adherence to the fundamental principles that underline governance in Canada.
Canada is inherently based on democratic representation as one of its fundamental principles – effective representation and a respect for the rule of law is a necessary and essential correlated aspect. While the notwithstanding clause technically allows for the public to have the final say in terms of elections, it must be equally stated that an elected official does not gain a “free pass” to do whatever they please while in office. The elected official represents the people not simply at the time of election but for the duration of this office – they should be in tune with the emotions, calls and needs of the people and not simply leap over the measures of accountability through legal loopholes. The inherent sense of “consent” placed in a vote by every Canadian voter is not “frozen” – it grows and evolves with time, context and environment. While such a concept is not a creature of law, the concepts of consultation or analyzing and reflecting on some kind of bifurcated perspectives would seemingly be common sense to a politician.
While it should be noted that there may very well be supporters of this Ford’s actions, the simple fact that the Act occurred in an abrupt and illogical manner right in the middle of the Municipal Election illustrates the absence of faith in the Premier to act in a restrained and rational manner. Consequently, viewed from any direction, Ford’s actions serve in contradiction to a sense of political accountability, and for now, we can clearly see that whatever the black-letter law may allow him, he will act upon it based on the beat of his own political drum.
By Timothy Law