Waking the Giant: Charter Litigation Under the Spectre of the Notwithstanding Clause

One of the new provincial government’s most controversial early initiatives was reducing the size of Toronto City Council.

Outraged opponents took to the courts, and the Superior Court found the Better Local Government Act, 2018 invalid on the basis of section 2(b) (freedom of expression).¹ The Premier quickly responded by invoking section 33 of the Canadian Charter of Rights and Freedoms² to override the decision. This is the first time Ontario’s legislature invoked section 33, more commonly known as the Notwithstanding Clause.

Introduced on September 12, the Efficient Local Government Act, 2018 (Bill 31)³ provided the legislation operate “notwithstanding sections 2 and 7 to 15 of the Canadian Charter of Rights and Freedoms.” As the bill moved through the legislature, the government also appealed the decision. When the Court of Appeal stayed the decision pending the outcome of the appeal,⁴ the use of the Notwithstanding Clause, and Bill 31 more generally, became moot.

However, Premier Doug Ford has said that he “won’t be shy” about using Section 33 if the courts thwart his agenda.⁵ And recently elected Québec Premier François Legault has since announced he would use the Notwithstanding Clause to prevent Québec civil servants from wearing religious symbols.⁶ We are therefore taking this opportunity to review the functions and limits of the Notwithstanding Clause, and to consider some implications for litigation involving Ontario’s new government.

Historical Use

Section 33 was a historical compromise between Prime Minister Pierre Trudeau and the provincial premiers with whom he negotiated the text of the patriated Canadian Constitution. Since then, it has been invoked infrequently. This is likely due in part to the development of a robust body of case law under section 1 of the Charter, which permits deference to infringements of Charter rights that can be “demonstrably justified in a free and democratic society.”⁷ As a result, legislators have often not needed to invoke section 33 to further their agenda. Other times, they have presumably determined that the political consequences of overriding constitutionally guaranteed rights would be too high. However, the Notwithstanding Clause has been invoked in a handful of cases at the provincial level.

From 1982 to 1985, the Government of Québec demonstrated its opposition to the new Constitution (which it had not signed on to) by including section 33 in every statute passed by the National Assembly. Although this practice largely ceased after 1985, one particularly controversial use involved An Act to Amend the Charter of the French Language,⁸ passed by the legislature in the wake of the Supreme Court of Canada’s decision in Ford v Quebec (Attorney General).⁹

In Ford, the Supreme Court struck down a Québec law banning the use of English in commercial signs as a violation of freedom of expression under section 2(b) of the Charter. The Government of Québec reintroduced the ban, invoking section 33 to protect it from judicial scrutiny.

Although the Notwithstanding Clause is a powerful tool, it has limitations.

Outside of Québec, only Alberta,¹⁰ the Yukon,¹¹ and Saskatchewan have invoked the Notwithstanding Clause. Saskatchewan has invoked the Notwithstanding Clause twice. In 1986, the province invoked section 33 to insulate back-to-work legislation¹² from a Saskatchewan Court of Appeal decision that had struck down similar legislation as an infringement of freedom of assembly rights under section 2(d) of the Charter.¹³

The province invoked section 33 for a second time in 2017, this time in response to a decision of the Court of Queen’s Bench finding the province’s funding of Catholic schools for non-Catholic students violated section 2(a) (freedom of religion) and section 15 (equality).¹⁴ The Saskatchewan Government introduced the School Choice Protection Act,¹⁵ which invoked the Notwithstanding Clause with respect to those Charter provisions.¹⁶ The legislation received royal assent in May 2018, but has not yet been proclaimed in force.

Limits of the Notwithstanding Clause

Although the Notwithstanding Clause is a powerful tool for legislators who choose to use it, it has limitations. First, it can only be invoked to override certain sections of the Charter. It cannot be used to limit important political rights, such as voting rights (section 3), mobility rights (section 6), the requirement that legislatures sit at least once per year (section 5) and minority language education rights (section 23). It has no impact on federalism-based review. It also can’t be used to override rights retroactively, and therefore cannot cure past constitutional infringements. Finally, although the scope of unwritten constitutional principles (such as the rule of law or judicial independence) remains unclear, there is nothing in the text of section 33 that suggests that it can override these principles if they are used to invalidate legislation

Conclusion

Notwithstanding its clear limits, section 33 remains a powerful tool in the legislative arsenal. The Ontario Government’s stated willingness to invoke the Notwithstanding Clause means that litigants seeking to challenge government action will need to adapt accordingly. Choosing sections of the constitution that are not subject to the Notwithstanding Clause, or that rely on unwritten principles or administrative law grounds could avoid winning the battle in court but ultimately losing the war in the legislature.

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¹ S.O. 2018 c.11. City of Toronto et al v Ontario (Attorney General), 2018 ONSC 5151.

² Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. [the Charter]

³ Bill 31, Efficient Local Government Act, 1st Sess, 42nd Leg, Ontario, 2018.

⁴ Toronto (City) v. Ontario (Attorney General), 2018 ONCA 761.

⁵ Mike Crawley, “Doug Ford ‘won’t be shy’ to use notwithstanding clause again, and he’s getting support for that”, CBC News (12 September 2018), online: <https://www.cbc.ca/news/canada/toronto/doug-ford-notwithstanding-charter-1.4818730>

⁶ Les Perreaux, “François Legault to invoke notwithstanding clause to ban some from wearing religious symbols,” Globe & Mail (October 2, 2018), online: https://www.theglobeandmail.com/canada/article-francois-legault-to-invoke-notwithstanding-clause-to-ban-quebec-public/.

⁷ Canadian Charter of Rights and Freedoms, s 1, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

⁸ S.Q. 1988, c. 54.

⁹ [1988] 2 SCR 712, [Ford].

¹⁰ Marriage Amendment Act, S.A. 2000, c. 3. This legislation was passed to define marriage as being between a man and a woman but was ultra vires of the Alberta Legislature’s authority since, under s. 91(26) of the Constitution Act, 1867, Parliament has exclusive authority to legislate on matters of “Marriage and Divorce.”

¹¹ Land Planning and Development Act, S.Y. 1982, c. 22. However, this legislation was never proclaimed in force.

¹² The SGEU Dispute Settlement Act, S.S. 1984-85-86, c. 11.

¹³ RWDSU Locals 544, 496, 635, 955 v Saskatchewan, (1985) 39 Sask R 193 (CA), rev’d RWDSU v Saskatchewan, [1987] 1 SCR 460.

¹⁴ Good Spirit School Division No. 204 v Christ the Teacher Roman Catholic Separate School Division No. 212, 2017 SKQB 109.

¹⁵ S.S. 2018, c. 39.

¹⁶ Ibid, s. 3.