The House: Will Doug Ford pay a price for deploying the notwithstanding clause?
If he does, he'll be the first — past uses of the constitutional 'nuclear option' have been consequence-free
As a rule, when the courts overturn a law for violating the Charter of Rights and Freedoms, federal or provincial governments either appeal it to the very top or redraft the offending legislation to ensure those rights and freedoms are respected.
Ontario's not taking either approach.
Premier Doug Ford is invoking the notwithstanding clause in Section 33 of the Constitution Act to override a trial judge's ruling that his government's bill to restrict third party spending in elections is not a reasonable limit on freedom of expression.
Ford recalled the legislature Thursday and announced a plan for a marathon sitting over the weekend to push through legislation invoking the notwithstanding clause. A final vote is expected Monday.
Ford's not the first premier to try to invoke the notwithstanding clause. He's not the first to spark a debate over whether it's being used the way its framers intended.
Quebec has used it frequently; Premier François Legault deployed it preemptively to head off any challenges to Bill 96, legislation intended to protect the French language in the province.
"The constitution's 'notwithstanding' clause exempts legislation from judicial scrutiny, endangering fundamental freedoms guaranteed by the Charter," former federal justice minister Allan Rock tweeted in response to the Quebec bill. "Hard to imagine a case justifying its use. Yet it is becoming alarmingly common. Time to speak out!"
Saskatchewan also used it — to overturn a 2017 court ruling on the funding of Catholic schools. University of Saskatchewan law professor Dwight Newman defended then-premier Brad Wall's decision at the time.
"The notwithstanding clause was a vital part of the constitutional negotiations that led to the Charter being adopted in 1982. Without it, some provinces were unwilling to come on board," he wrote in the National Post.
"Those who argue that the notwithstanding clause is somehow illegitimate actually bear the onus of explaining how the rest of the Charter would be legitimate without it."
Now it's Ford's turn to launch another argument over the value and purpose of allowing governments to override the courts and the basic rights guaranteed by the charter.
The 'nuclear option'
Is Section 33 a legitimate tool that governments can use as they see fit? Or is it a "nuclear option" (as Rock has put it) that was intended by its creators to be used rarely, if at all?
"When you use the notwithstanding clause, you're saying, 'I'm doing something that cannot be reasonably justified in a free and democratic society,'" said Liberal pundit David Herle in a debate on this weekend's edition of CBC's The House.
"And you have to ask yourself, why are they doing that?"
Jenni Byrne takes the opposite view. The former top aide to both Ford and Stephen Harper argued the notwithstanding clause was put into the Constitution to ensure public policy would be made by legislators, not the courts.
"So I truly believe that this is the right move to make," she said. "In fact, I'm not sure what the controversy is."
Byrne insisted the Ontario law is designed to limit the influence of third parties by restricting how much they can spend in the 12 months before the election. That restriction would kick in with the province's next fixed-date election, set for June 2, 2022.
Ford's critics argue he's trying to muzzle unions and other groups who oppose his government. NDP Leader Andrea Horwath called it a "power grab." Others have called it dictatorial and undemocratic.
They point out that Ford threatened to use Section 33 once before — in the event the courts rejected his bill to reduce the size of Toronto City Council.
'We need to restore the stigma'
For Herle, who now runs the Gandalf Group, the issue isn't the elections bill itself but the fact that Ford is only the latest politician — and very likely not the last — to use the notwithstanding clause to further a narrow political agenda.
"I think in an ideal world, we would get rid of Section 33," Herle said, acknowledging politicians' lack of enthusiasm for engaging in constitutional reform.
"But I do think we need to restore the stigma against using it. It needs to become something a government is embarrassed and afraid to use, for fear of pushback."
So far, there appears to be little political risk to invoking the notwithstanding clause. Not one of the federal party leaders has openly confronted Legault over Bill 96 — in the lead-up to a possible fall federal election which could see Quebec's 78 seats play an outsized role in the outcome.
Brad Wall's Saskatchewan Party didn't pay a price either. The party was re-elected to another majority government under Scott Moe in 2020.
Is Ford an easier political target? Byrne thinks so. She told The House the outrage directed at his decision by the media and opposition carries some political risk.
"But the determination you make is that your position is right and you want to move forward because it is the right thing to do," she said.
Right or wrong, Ford leads a majority government and almost certainly will get his bill through on Monday — notwithstanding any criticism directed at him, or at the increasingly common use of a constitutional tool that many have regarded as a political weapon of last resort.
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