What is the Nothwithstanding Clause?

Section 33 of the Charter of Rights and Freedoms of 1982 (or the Notwithstanding Clause) gives parliament, at either the provincial or federal level, the ability to override decisions of the courts on certain fundamental rights for a period of five years.

Why does it exist?

Two reasons: first, Canada is founded on the Westminster model of government based on the British system. In this system, parliaments are sovereign over the law and the judicial branch. In contrast, in the United States, the Constitution, and the court, has the final say over what’s legal. Canada is a hybrid model. Parliament has the ability to make laws, while the courts ensure Charter rights are upheld. Often, the Courts will make a ruling on an issue and then give parliament a period of time to legislate so that a law meets the requirements of the Charter.

The second reason was due to political compromise. In the early 1980s, when Pierre Trudeau wanted to repatriate the Charter in, giving Canadians control of our Constitution from Britain, many provincial premiers worried it would shift power from the legislatures to the judiciary. The Clause was put in place to ease the fears of many of the provincial premiers, particularly in the West, who worried the Charter would undermine provincial authority.

If it’s in the Charter, why does it matter if it’s used?

Since its introduction, the use of the Notwithstanding Clause has been controversial. There has been a political norm that courts protect individual rights and freedoms from the laws passed by legislatures. Politicians of all political stripes have been reluctant to break this norm. In the rare times it has been used, most notably by the Quebec government protecting French language rights, it’s led to a great deal of scrutiny by the press and the public.

What’s this case in Ontario all about?

The new Progressive Conservative government, under Premier Doug Ford, introduced Bill 5 – the Better Local Government Act, 2018. The Act alters Toronto City Council from 47 to 25 councillors. The Tories posit it will provide better governing for the City of Toronto, while opponents argue it lacks proper consultation this close to the October 22, 2018 municipal election.

The case was brought to court where a judge ruled the Act violates the Charter right to freedom of expression for candidates and for the citizens of Toronto.

The response by the government was to use the Notwithstanding Clause to disallow the court ruling and reintroduced the Bill to cut Toronto’s city council.

Who’s right who’s wrong?

Like many aspects of politics, it depends upon one’s political views. The Ford government is correct that municipalities are within provincial jurisdiction and the Notwithstanding Clause is a tool for governments to overturn court rulings on Charter rights. While its use isn’t common, it is in the constitution for governments to use if they feel the courts have gone too far.

It’s contentious because no other government in Ontario’s history has used the Clause, and other governments have been reluctant to overturn the court’s rulings. It has even been criticized by fellow Conservatives such as Brian Mulroney and former Premier Bill Davis.

The Official Opposition widely panned the use of the Notwithstanding Clause as an affront to Canadian’s fundamental rights. The opposition leader, NDP leader Andrea Horwath, and Kingston and Islands’ MPP Ian Arthur were even ejected from the legislature over protesting the bill’s reintroduction.

The Progressive Conservatives campaigned on finding efficiencies in government, though they didn’t specifically discuss reshaping Toronto City Council. Premier Ford mentioned he planned on using the Clause regularly over key policies of his government that may infringe on individual liberty.

This could be the beginning of a new phase in Canadian politics where parliaments re-assert their authority over the courts, and the Charter, through the Notwithstanding Clause.

Will anything in Kingston change?

No. The municipal election with the current number of districts will take place on October 22, 2018. If people feel passionate about the issue, they can contact Premier Doug Ford, opposition leader Andrea Horwath, or local MPP Ian Arthur.


Brandon Tozzo is a lecturer of political science. He has written for the Toronto Star and worked for Global Television and CTV. He is currently a resident of Kingston and involved in progressive campaigns throughout the city.

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