An Argument for Eliminating the notwithstanding clause (Section 33) of the Canadian Charter of Rights and Freedoms.
The Ford (Ontario) government is once again threatening to invoke The notwithstanding clause (Section 33) of the Canadian Charter of Rights and Freedoms (as of Nov. 1, 2022) — to suspend workers' rights in Ontario — specifically, to “avert a looming strike and impose a four-year contract on about 55,000 education workers, including librarians, custodians, and early childhood educators, but not teachers.” (1)
This is not the first time Premier Ford has threatened to use Section 33 and he isn’t the only one. Below is an excerpt from my book Black and White, An Intimate Multicultural Perspective on “White Advantage” and the Paths to Change published earlier this year. (Nimbus 2022). I detail the key elements of the Charter and highlight Section 33 calling for its elimination because of the negative effect its use or threat of use is having on our democracy. I had specifically written about this in relation to discriminatory bills (Bill 96 and Bill 21) passed in the province of Quebec related to the language and religious rights of Canadians living in that province.
Chapter 8. P. 197. Black and White © Stephen Dorsey 2022
The Notwithstanding Clause
…. many, including myself, have called for the abolishment of the notwithstanding clause. I’m not an academic, but I consulted with my much more informed friends who live and breathe the Charter, and they shared with me the actual mechanics of how this could be achieved fairly and responsibly — not just to deal with the issues facing Québec today, but to curtail the flagrant abuse of Section 33 by other provinces in the future.
The notwithstanding clause, which, as a reminder, allows Parliament or provincial legislatures to temporarily override (or essentially ignore) sections of the Canadian Charter of Rights and Freedoms they do not like, was written into the Charter back in 1982. Its genesis is rooted in the first ministers’ conferences of 1980 through the 1982 patriation of the Constitution. As CBC News describes: Various factions in the discussions argued over whether the new Constitution should include an entrenched charter of rights. Pierre Trudeau, who was then prime minister, argued against the idea of a notwithstanding clause but faced opposition from provinces that wanted a way to override some charter guarantees and some who were worried about potential judicial overreach.
At long last, on the evening of November 4, 1981, Justice Minister Jean Chrétien and Saskatchewan Attorney-General Roy Romanow developed what was known as the “Kitchen Accord,” “a compromise that included an entrenched charter of rights along with notwithstanding provisions.”65 Although Québec would refuse to sign it, nine provinces joined the federal government in signing the constitutional accord on November 5 — notwithstanding clause included.
By eliminating Section 33 from the Charter, the protection against overreach would instead have to be baked into government legislation in a manner that was consistent with the Charter. This way, the onus would be on provincial governments, for example, to craft and pass legislation that protects equality but also allows for equity measures to be considered as necessary as per Section 15 of the Charter.
Part One of Section 15 of the Charter details that “every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” The word “particular” is important, as it reflects that the included list is just sampling of the protected rights of Canadians.
For example, it wasn’t until 2005 that the federal government passed the Civil Marriage Act, making same-sex marriage legal across Canada (British Columbia and Ontario had allowed it as of 2003). The legislation was consistent with Section 15, Subsections 1 and 2 of the Charter — the latter noting that an equity measure can be put in place that “does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”
This is the mechanism that French Canadians could leverage to support well-crafted legislation to enact equity-based policies addressing their minority language status in Canada — those same policies specifically intended to promote and sustain the French language in Québec and across Canada; the policies that align with the principles of the Charter, and which, most importantly, do not discriminate against other citizens.
Bill 21 doesn’t come close to measuring up to the Charter and should be stricken in its entirety. It’s clear that key sections of Bill 96 should be challenged under Section 15 of the Charter, and the only way to do so at this stage would be to amend the Charter. Premier Legault’s government’s insistence on invoking the notwithstanding clause to shield itself and its flawed legislation (Bill 96 and Bill 21) goes against the fundamental liberal democratic principles of this country. On a personal level, I find it galling to see it being used in such a cavalier manner by a provincial government that refuses to sign on to the Canadian Constitution.
It is worth noting that Québec is not alone in its ability to flex its populist power and invoke the notwithstanding clause. Ontario Premier Doug Ford — brother of Rob Ford, the infamous “crack mayor of Toronto” — threatened to invoke the notwithstanding clause of the Charter as a pre-emptive measure to stave off any potential challenges to his petty, revenge-fuelled legislation to cut the size of Toronto City Council by half. His threat came in the middle of a declared municipal election. (He was reportedly upset at many councillors whom he felt had treated him badly when he was a city councillor.)
Ford did recklessly evoke Section 33 in June 2021 to pass Bill 307, legislation that would “double the restricted pre-election spending period for third-party advertisements to 12 months before an election call.” The Ford government argued this restriction, under the same legislation Ontario Superior Court Justice
Edward Morgan had previously ruled unconstitutional, was necessary to “protect elections from outside influence.” Ford defended his actions, stating simply, “We’re fighting for democracy. I’ll work all day, all night to protect the people.” In reality, it was purely a political move to hamstring the ability of opposition parties to raise monies to fight future elections.
Here’s why Canadians should be concerned. The notwithstanding clause essentially holds us hostage to the intransigence of populist provincial governments, and as we’ve experienced recently with Québec and Ontario, it threatens the very foundation of our liberal democracy and the rights it accords all Canadians within our constitution. If you’re still not convinced, remember this:
If you are amenable to limiting the rights of others today, what is stopping anyone from doing the same to you tomorrow?
About Stephen Dorsey
Stephen Dorsey is the author of Black and White, An Intimate Multicultural Perspective on “White Advantage” and the Paths to Change (Nimbus 2022), a podcast host of Black and White with Stephen Dorsey on Evergreen Podcast Network, and a recognized EDI thought leader, speaker, facilitator and moderator based in Toronto, Canada. Stephen’s articles and op-eds have been published in various national publications including in the Globe and Mail and Le Devoir, and he has been a frequent interviewee on Canadian radio and television. www.stephendorsey.com
