Until recently, the word notwithstanding was a bit lengthy to be commonly seen in the newspaper. However, Ontario Premier Doug Ford’s threatened use of a clause in the Charter of Rights and Freedoms changed that.
The “notwithstanding” clause, Section 33 of the Charter. says the government can force legislation “notwithstanding” certain rights, like freedom from search and seizure, or freedom of association.
It’s a broad power, and the Charter likely would not exist without it. When the Charter was proposed in 1982, many politicians, like Jean Chretien, who was the then Attorney General, were concerned the Charter would put too much power in the hands of the judges. The notwithstanding clause supposedly fixed that.
It is an override of Canadians’ rights and freedoms, and does not get used often. It has never been used in Ontario’s history. Thankfully, it remains unused in this province.
Ford has made his cuts to Toronto’s city council, after a decision by the Court of Appeal for Ontario. The judges said that while cutting our council to 25 seats from 47 seats was unfair, it was not unconstitutional. Thus there is no need to override the Charter when the premier has what he wants.
Still, it does not mean Torontonians agree with cutting council. As the court battle was being fought, Mainstreet Research released a poll finding that over half of Torontonians disagreed with the cuts. Even more disagreed with the use of the notwithstanding clause.
Ford’s campaign promises were wide and varied, from cutting carbon taxes to allowing MPPs to open up a debate on abortion rights.
Besides that, cutting Toronto’s city council was not part of his election platform. It is difficult to know what he will propose next.
It has only been four months since the election and there are already multiple court battles notching the government’s belt. Tesla recently sued the government over cancelling subsidies in purchasing green vehicles, and won.
An 11-year-old transgender student is filing a human rights challenge over the cancellation of the updated sex education curriculum, which was replaced with an outdated version compiled in 1995. A class action lawsuit over the basic income pilot project is looming. And OPSEU, the union representing college faculty, launched a Charter challenge over the cancellation of the Colleges Task Force, which was part of the arbitration award that ended last term’s five-week strike.
It is only reasonable to expect more court cases. Should any of Ford’s future decisions be legally challenged on the basis of the Charter, he suggested he may reach for the notwithstanding clause again.
And notwithstanding a drastic change of heart, Ontarians can expect to hear “notwithstanding” soon again.