Doug Ford's use of notwithstanding clause sparks fears it will embolden others to invoke it

When Pierre Trudeau'scabinet met to debate the inclusion of thenotwithstanding clause in the Constitution nearly 40 years ago, there was a significantminority who argued that political leaders would always betemptedto use it.

But "the optimists" in the room thought it wouldbe used rarely yetjudiciouslythat premierswould be constrained by theirreluctanceto overturnfundamental rights, according to the former prime minister's principal secretary.

"Andby and large, that has occurred. Until Ford," said Tom Axworthy, who advised Trudeau during the Constitution consultations.

NowAxworthyfearsthat Ontario Premier Doug Ford's promise to invokethe clause for the first time in the provincemay put more pressure on other governments to use it.

"The worry is now, with Ontario announcing this,that this will embolden, if not premiers,lots of other activists on lots of other issues who don't like this [or that] particular court ruling they'll start saying: 'Let's use the notwithstanding clause. Doug Ford did," he said.

'Legitimate concern'

It's a fear shared by constitutional expert Wayne MacKay, professor emeritus of law at Dalhousie University. In an era of of populist politicians, using the notwithstanding clause may no longer be considered politically dangerous, MacKay said.

"[It's] maybe going to be seen as a politically good thing to dothat maybe you're not going to, as traditionally viewed, lose votes by setting aside the charter," he said.

"I think it is a legitimate concern, because of the odd times in which we live in, interms of people like Trump and others, who are able to appeal to a certain segment of the population that aren't necessarily very rights-focused."

Ford announced Monday that he would take the rare step of invoking Section 33 of the Canadian Charter of Rights and Freedoms after an Ontario Superior Court judge ruled that his provincial government'slegislation to cut the number of Toronto citycouncillorswas unconstitutional.

Section 33known as thenotwithstandingclauseallows for premiers or prime ministers to override rulings on legislation thatjudges have determined would violate sections of the charter for a five-year period.

Pierre Trudeau opposed the clause, but reluctantly acquiescedto its inclusion in order to get a deal on the Constitution Act of 1982, which wrested control of Canada's Constitution from Britain.

Used 15 times before

Political leaders have generally been reluctant to use the notwithstanding clause, which is viewed by many as politically toxic. It's been invoked more than 15 times, and mostly in Quebec, which included it in every piece of legislation from 1982 to 1985as form of political protest.

"The perception is that when you invoke the notwithstanding clause, you've decided to prioritize political expediency over rights," said VanessaMacDonnell, a constitutional law expert andassociateprofessorat the University of Ottawa.

"That's the dominant feeling people have,which is why it really hasn't been used much. So it's exceptional that Ford has said that he intends to use it."

The convention has been that it only be used"on the most important possible issues imaginable after a very fair process of debate," saidAxworthy,a distinguished fellow at the Munk School of Global Affairsand chair of Public Policy at Massey College.

Brian Mulroney on the Notwithstanding clause

6 years ago

Duration 2:06

Former Prime Minister Brian Mulroney spoke in Ottawa on Tuesday

Some premiers, such as Alberta's Ralph Klein, have been tempted to use the clause on social issues such assame-sex marriage, he said, but no onehas carried through.

"I could not have foreseen it being imposed, in my worst nightmares, over an issue like the size of a council for Toronto,"Axworthysaid.

MacKay, who isn't opposed to the use of the clause,agreed that it was meant for issues such as the War Measures Act, language, or those of political and cultural significance.

"I can't imagine in the complex, lengthy constitutional negotiations that there was a single person who thought, 'Gee, maybe they'llwant to change the number of citycouncillors. So let's have this clausejust in case.'"

Fears unfounded

But Emmett Macfarlane, an associate professor of political science at the University of Waterloo, who also specializes in the charter, said the clause has already been used in ways not anticipated by its framers including Quebec's early, pre-emptive implementation of it before challenges had come up in court.

And despite Ford's pledge to invoke the clause, Macfarlanesaid he expects politicians will continue to be shy about using it "precisely because of the backlash we've seen."

The topic has generated mostly "the sky is falling" media coverage, he said, meaning the average voter will likely have a negative view of its implementation.

"The dominant narrative with the notwithstanding clause is that it overrides rightsthat's not going to make it popular. So I'd be surprised if we saw the floodgates open outside of Ontario," he said.

MacDonnellsaid there hasn't beenenough time toprocess the public reaction to Ford's actions and whether he will take a political hit.

"Iwould be shockedif we saw the proliferation of the notwithstanding clause by othergovernmentsas a result ofthis. I think Ford's an outlier," she said.

But if Ford, as he suggested Monday, begins using the clause routinely, it could "shift the expectations a little bit and that opens the door to its use by others," MacDonnell said.