Ford's retreat notwithstanding, the fight over charter rights is far from over

The events in Ontario over the last week offer only limited solace to those who worry that politicians are increasingly unafraid to use the notwithstanding clause to override judicial rulings on the Charter of Rights and Freedoms. But in a way, the system worked.

Political accountability ultimately kept the Ontario government in check

A defaced picture of Ontario Premier Doug Ford sits atop a trash barrel as CUPE Ontario members and supporters demonstrate outside of the Queen's Park Legislative Building in Toronto on Nov. 4, 2022. (Cole Burston/The Canadian Press)

The events in Ontario over the last week offer only limited solace to those who worry that politicians are increasingly unafraid to use the notwithstanding clause to override judicial rulings on the Charter of Rights and Freedoms.

But in a way, the system worked. Ontario Premier Doug Ford's government made questionable use of the notwithstanding clause, the public and civil society rose up to say it was unacceptable, and Ford felt compelled to back down.

If the ultimate limit on the notwithstanding clause is "political accountability," this was an example of the democratic system working more or less as it should.

In that respect, Ford's adventure in constitutional power plays offered echoes of Stephen Harper's decision to have Parliament prorogued in December 2009.

Initially, it was tempting to assume that Harper's move — which short-circuited an investigation into the treatment of Afghan detainees and put Parliament on pause for two months — would be met with a shrug by the vast majority of Canadians. Instead, there were protests across the country and public polling showed a sharp drop in support for the governing Conservatives.

A man in a blue suit sits at a row of desks.
Ontario Premier Doug Ford may have had what he thought were good reasons for believing he could invoke the notwithstanding clause pre-emptively without doing himself any damage. (Frank Gunn/The Canadian Press)

Prorogation is not inherently a contemptible tool — in theory, it's simply a procedure for ending one session of Parliament and beginning another. Harper was also far from the first prime minister to have politically convenient reasons for using it. But a significant number of Canadians decided that his use of the power was egregious.

This is one way that standards of acceptable behaviour — or "political norms" — can be enforced in a democracy. Many of the rules and expectations that define a democracy can be codified in laws or regulations and enforced by impartial institutions. But written laws will never account for everything.

To some extent or another, the continued maintenance of democracy will always depend on leaders restraining themselves — or on voters punishing leaders who wield their power too cavalierly.

Ideally, that public reaction to transgressions then influences future decisions — just as Harper's prorogation in 2009 left a mark.

When Harper next sought to prorogue Parliament in 2013, he did so in far less controversial fashion. Prime Minister Justin Trudeau's Liberals have prorogued Parliament only once (not uncontroversially) since coming to office in 2015. They also followed through on a campaign promise to add a rule that requires a government to explain and defend its decision to prorogue Parliament after the fact.

How Ford underestimated the backlash

Fear of a negative public response was supposed to deter governments from using the notwithstanding clause. But Ford already had threatened to use it in 2018 (when he reorganized Toronto's city council) and he went through with using it in 2021 (to override a court decision on political financing) without suffering much political damage.

So Ford had reasons to assume he could use the clause again without too much trouble.

But the premier and his advisers seem to have discounted at least two factors.

First, the preemptive use of the clause in Ontario, at the expense of organized labour, created an opportune moment for Trudeau to take a loud stand.

WATCH: PM Trudeau criticizes Ford government's use of the notwithstanding clause

`Just don`t use the notwithstanding clause proactively` - PM Trudeau

11 months ago
Duration 0:40
Following Ontario Premier Doug Ford's suggestion that the federal government reopen the conversation on the Constitution, Prime Minister Justin Trudeau says the solution is for premiers to not use the notwithstanding clause proactively.

Second, while Ford framed his fight in terms of keeping schools open — a message that theoretically should have resonated with Ontario families — it turned out that the workers and the union involved had a lot of allies.

Polling quickly showed public opinion running against Ford. Reporting over the weekend suggested that a number of unions were banding together, with plans for a provincewide general strike.

Ford's position was untenable and he had to abandon both his back-to-work legislation and its use of the notwithstanding clause.

The result may be that the words "notwithstanding clause" become tainted, much the way "prorogation" was poisoned after 2009. That could help re-establish some of the political accountability over the clause's use that has been lacking in recent years.

But Ford's retreat can't be seen as the end of the conversation.

The unfinished fight over the notwithstanding clause

Even if the Trudeau government has no interest in pursuing a constitutional amendment to repeal the notwithstanding clause, it has at least a few options — one of which might be worth entertaining at this point.

It has been suggested that the Liberals could revive the use of "disallowance," a federal power that allows the federal government to overrule provincial legislation.

Depending on how you feel about the recent use of the notwithstanding clause, that might seem like a justifiable approach. But it probably should be regarded as a nuclear option — the sort of lever you pull only when you think it's worth the pitched federal-provincial conflict that would certainly follow.

A less contentious approach would be to send a reference to the Supreme Court asking it to rule on whether provinces should be allowed to invoke the clause pre-emptively, instead of using it only after the courts have ruled against a particular piece of legislation.

Trudeau has focused his attacks on the pre-emptive use of the clause. He has argued that it effectively avoids the political accountability that comes when a government is forced to defend using the clause to override a decision that someone's charter rights have been violated. Giving the federal justice department a mandate to argue the matter before the Supreme Court could be a proactive way for the Liberal government to get directly involved.

But Trudeau and Justice Minister David Lametti would still be taking their chances with the court. They'd have to hope that most of the justices would be willing to put a new limit on use of the clause.

Ultimately, ensuring that the notwithstanding clause remains (or goes back to being) a rarely used tool of last resort will still depend on how much leaders fear the potential reaction.

On that score, the past week's events in Ontario offer no reasons for the notwithstanding clause's opponents to declare their mission accomplished.

In Quebec, Bill 21 is still law — and is still being contested in the Quebec courts.

If you're a Muslim living in Quebec and feeling discriminated against, you probably don't feel like the system is working. You're also probably wondering when the forces of political accountability will win you the rights you are due.


Aaron Wherry

Senior writer

Aaron Wherry has covered Parliament Hill since 2007 and has written for Maclean's, the National Post and the Globe and Mail. He is the author of Promise & Peril, a book about Justin Trudeau's years in power.