Doug Ford’s use of notwithstanding clause is heavy-handed thuggery

When Pierre Trudeau finally secured the support he needed to repatriate the Constitution and create a Charter of Rights and Freedoms in 1982, it came with a catch: the inclusion of Section 33, or the notwithstanding clause. That provision, which was the brainchild of Alberta Premier Peter Lougheed, sought to protect the power of provincial legislatures and check the influence of federal courts. Trudeau was a vocal opponent of the idea and resisted its inclusion, but as then-Justice Minister and future Prime Minister Jean Chrétien wrote in his 2008 memoir, “Canada probably wouldn’t have had any Charter without it.”

But if Doug Ford and François Legault have their way, Canada may not have a Charter worth defending for much longer. There was a longstanding assumption that any use of the notwithstanding clause would come at a prohibitively high political cost, one that would prevent it from being used. For the better part of the Charter’s four decades of existence, that assumption held true. After the Quebec government attached it to all of its legislation between 1982 and 1985, the notwithstanding clause went largely dormant in Canada.

Then Legault and Ford arrived on the scene. In 2019, Legault’s newly elected Coalition Avenir Québec government applied the notwithstanding clause in Bill 21, a piece of legislation that prevented public workers in positions of authority from wearing religious symbols. Much outrage ensued, but most of it was of the performative variety. When it came to any actual response from Ottawa, Justin Trudeau’s Liberal government pulled its punches as much as it could. The reason was obvious: a minority government with substantial representation in Quebec couldn’t afford to alienate the province’s popular new premier.

That sort of political calculus also informed the federal government’s half-hearted response to Ontario’s first-ever use of the notwithstanding clause in 2021, when Ford’s government used it to restore parts of his Election Finances Act that had been declared unconstitutional — including a rule that restricted third-party advertisers to $600,000 in the 12 months before an election was called.

Legault and Ford weren’t done. First, Quebec’s premier included it in Bill 96, a new language law that restricts the use of English in the public service and allows inspectors to conduct searches and seizures in businesses without warrants. That sort of pre-emptive constitutional strike was new, and it set a precedent that clearly alarmed officials in Ottawa. As Justice Minister David Lametti said, the notwithstanding clause “was meant to be the last word in what is, in effect, a dialogue between the courts and legislatures. It wasn’t meant to be the first word.”

Be that as it may, Legault’s gambit showed that the supposed political price attached to the use of the notwithstanding clause was no longer being charged, if indeed it ever was. His party was returned to government in October’s provincial election with an even bigger majority than it won in 2018.

That set the stage for this week’s stunning decision by Ford to use the notwithstanding clause to force a contract onto 55,000 education workers in Ontario. They include librarians, custodians and early childhood educators, and they will no longer have the ability to challenge the province’s back-to-work legislation in the courts for a period of five years. The so-called “Keeping Students in Class Act” sticks those earning less than $43,000 with a meagre 2.5 per cent wage increase that drops to 1.5 per cent for those earning more. And if any of them are tempted to strike anyways, they’ll be hit with a $4,000 daily fine.

This is the dictionary definition of heavy-handed thuggery, but it comes at the hand of a government that just recently won a fresh mandate from the voters. Having paid no price for his first usage of the notwithstanding clause, Ford seems to be testing just how far he can go before Ontarians are willing to clap back. Other conservative premiers across the country are surely watching the fallout and wondering whether they, too, could use it to circumvent any future labour dispute they might have with their teachers, nurses or other public-sector officials.

Now, it’s up to the federal government to do something about this. Justin Trudeau’s reticence is understandable, given the potential cost to his Liberal Party in the two biggest provinces in the country (and their two biggest bastions of support). But at some point, he has to stand up for the Charter, if not to protect his father’s political legacy then at least to preserve some of his own. He needs to rally the public behind the Charter and restore the political penalty that was supposed to be associated with overriding the rights it confers on Canadians.

He can start by working to remove the ability of the federal Parliament to invoke the notwithstanding clause itself, an idea Paul Martin floated during the 2006 election campaign. At the time, he described it as “a hammer that can only be used to pound away at the Charter and claw back any one of a number of individual rights,” and while he lost that election, his idea deserves another look. That hammer, after all, is being wielded with growing impunity. The federal government can’t stop premiers Legault and Ford from using it to bash the rights of people in their province, but it can raise awareness of the consequences — and potentially restore the political cost.

The alternative is a country in which the Charter is barely worth the paper on which it’s printed. As Montreal lawyer and constitutional expert Julius Grey told the CBC earlier this year, “The rule of the majority can turn into the tyranny of the majority." Now, more than ever, we need a federal government that’s willing to stand up for the rights of the minority and the constitutional provisions that protect them. Yes, that could come at a political cost. But as we’re seeing, doing nothing may well come at a far higher one.