Doug Ford's use of the notwithstanding clause reduces democracy to majority rule
Judicial review is an acknowledgement that minority rights are often overlooked in majoritarian politics
During his Monday press conference, Ontario Premier Doug Ford responded to the decision handed down by Superior Court Justice Edward Belobaba that the provincial law reducing the size of the Toronto city council breached Charter rights. The premier stated that he would invoke s. 33 of the Charter, the so-called notwithstanding clause, to override what he considered to be a bad judicial decision, although he did not explain why he thought the judge was wrong in his application of the Charter. The legislature would be recalled and asked to pass a resolution declaring that The Better Local Government Act would apply "notwithstanding" the Charter. That process was set in motion on Wednesday.
But Premier Ford said more than this at his press conference. He also indicated that he would not hesitate to use s. 33 in the future, if and when a judge ruled against his government's legislation. After all, asked Ford, why should the views of unelected judges prevail over those of the elected representatives of the people — over the will of the majority?
With that declaration, the premier did more than simply state his disagreement with Justice Belobaba's decision: he (in effect) announced his opposition to the Charter of Rights, and his commitment to a conception of democracy in which the Charter has no place. Indeed, his assertions about the will of the majority (even though his government did not receive a majority of the votes) can be read as a rejection of the essential role of individual rights in a democratic form of government. Democracy is thus reduced to majority rule. It is left to the majority (or even a plurality) to decide if it wants to protect particular individual or minority rights.
Invoking s. 33
Section 33 of the Charter provides that the federal parliament or a provincial legislature "may expressly declare" that all or part of a law "shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter." A notwithstanding clause declaration will expire after five years, but may be renewed by the legislature. The clause applies to some rights in the Charter such as s. 2(b), freedom of expression, but not to others. A government may be politically accountable for its use of s. 33 but it is not legally accountable. It does not have to justify its use of s. 33 to the courts.
Section 33 has seldom been invoked and so has received relatively little attention outside the constitutional law classroom. But that has now changed. The prevailing public view in the post-Ford-press-conference period seems to be that Section 33 imperils our basic rights; that it allows a government to override important Charter rights, such as religious freedom and freedom of expression. But that may not be the best way to understand the purpose or anticipated use of s. 33.
During the negotiations that led to the entrenchment of the Charter, s. 33 was included to assuage the concerns of a number of provincial premiers, including Allan Blakeney of Saskatchewan, who worried that the Charter would enable judges (who were generally conservative in their outlook) to strike down progressive legislation. Governments could use s. 33 not to override rights, but rather, to override judicial interpretations of those rights when they thought the courts had got it wrong.
Instead of asking why we should have s. 33, perhaps we should instead be asking why we should have judicial review. Why empower the courts to determine whether a law, enacted by an elected government, breaches a right or freedom? Most of the rights in the Charter are stated in general terms, and represent abstract political values. While we may all agree that freedom of expression is important and ought to be respected, we are bound to hold different views about how that right should be applied in actual cases: Does freedom of expression protect obscenity? Is the restriction of hate speech a justified limit on freedom of expression?
It is not immediately obvious that such questions should be resolved by courts rather legislatures. There are a variety of justifications for judicial review – for giving the courts the authority to make these decisions. Central to most defences of judicial review is a recognition that important individual and minority rights are often lost sight of, and sometimes even deliberately overridden, in majoritarian politics. We hope that governments will respect basic rights, but we recognize that they sometimes fail to do so.
The idea then is that judges, insulated from political pressure, are well positioned to protect these rights from the give-and-take of ordinary preference-based politics. But there are lots of drawbacks to giving judges the authority to second-guess legislative judgments. Their lack of political accountability is a strength but also a weakness, especially when we recognize that the judgments courts must make under the Charter — particularly about limits on rights — are often political and sometimes messy.
If Premier Ford believes that Justice Belobaba was wrong in his decision, then s. 33 allows him (or at least allows the legislature) to bypass that decision. But if the premier begins to use s. 33 routinely, to avoid all Charter challenges that affect provincial laws, then he is doing something more troubling.
There is room for debate about the Charter and the role of judges in reviewing legislation. Premier Ford may wish to make the case that unelected judges should not play such a role in a democratic system and that the constitution should be amended. But s. 33 ought not to be used as a way of bypassing the Charter and, in effect, altering our constitutional arrangements.
There may be no legal redress here – no law that can be used to prevent him from doing this. Indeed, it has become more and more apparent that our system depends on the good faith of our politicians, and their commitment to the conventions of the constitutional order. When politicians do not act in good faith, politics — rather than law — may be our only recourse. Ironically then, the answer to Premier Ford's majoritarian challenge to the Charter of Rights may lie in the ballot box.