Midweek podcast: The debate over the notwithstanding clause

This week on The House midweek podcast, Carissima Mathen, professor of law and constitutional expert at the University of Ottawa, talks about the repercussions of the decision by Ontario Premier Doug Ford to invoke the notwithstanding clause. We also ask the CBC's Hannah Thibedeau and David Cochrane for the latest details on the NDP and Liberal caucus meetings.
Ontario Premier Doug Ford, with MPP Steve Clark, Minister of Municipal Affairs and Housing, tells reporters he will use the notwithstanding clause to overrule a judicial decision that would have halted his attempt to cut the size of Toronto's municipal council. (Christopher Katsarov/Canadian Press)
Listen to the full episode26:42

Ontario Premier Doug Ford is taking a lot of heat this week for his decision to invoke the notwithstanding clause to overrule a judge's decision that would have blocked his plan to cut Toronto's city council by nearly half.

Ford, being the first Ontario premier to ever use the measure, defended his decision this week by saying he has greater legitimacy than an appointed judge because he is democratically elected.

The notwithstanding clause, officially called Section 33 of the Charter of Rights and Freedoms, was created as a compromise between federal and provincial levels of government during debates over the constitution in the early 1980s.

Carissima Mathen, a constitutional law professor at the University of Ottawa told CBC Radio's The House that Ford's justification is concerning.

"I see it as a very disturbing claim that essentially the legislature is supreme over the courts if you have a mandate [to] do things, if you have, for example, a majority mandate," she said.

She explained that, under a constitutional democracy, a judge's decision is not considered invalid just because it disagrees with the legislature.

"You can disagree with that decision, but that's not an illegitimate thing to do, and it's very dangerous to start to suggest that," she said.

This week on The House midweek podcast, Carissima Mathen, professor of law and and constitutional expert at the University of Ottawa, talks about the repercussions of the decision by Ontario Premier Doug Ford to invoke the notwithstanding clause. We also ask the CBC's Hannah Thibedeau and David Cochrane for the latest details on the NDP and Liberal caucus meetings. 26:42

Ford has already threatened to use the notwithstanding clause again in the future.

"If they happen to be covered by the notwithstanding clause, we seem to have a signal from the premier that he's ready to invoke it again," Mathen said.

The notwithstanding clause allows the federal government or a provincial legislature to enact legislation that will override several sections of the Charter dealing with fundamental freedoms, legal rights and equality rights but only for a five-year period.

It can override certain categories, such a freedom of assembly and freedom of expression, but not a number of ​Charter rights, including voting rights, minority language education rights or mobility rights.

Some politicians oppose Doug Ford's use of the notwithstanding clause, but concede there's no stopping the Ontario premier from invoking it. 2:10

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