Policy Wanks: the notwithstanding clause

Latest use of the notwithstanding clause sets bad precedent for politics

The Ford name bears an incredibly loaded burden ripe with controversy in Ontario political spheres. The younger of the two brothers, Rob, was famously entrenched in substance abuse escapades while he held office as the mayor of Toronto.

More recently, older brother Doug Ford has found his newfound premiership weighed down by polarizing policy changes, including removing the old sexual education model from public school curriculum and putting an end to the previous government’s new basic income pilot project.

While the two aforementioned policy changes can be seen as relatively consistent with the traditional social conservative ideology, the most shocking use of his power was his recent use of the notwithstanding clause.

The notwithstanding clause is found in the Canadian Charter of Rights and Freedoms under section 33 and reads:

“Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.”

This means that a provincial government can use the notwithstanding clause to opt out of a specific part of the charter or a bill. However, it cannot be used to overrule certain fundamental freedoms such as democratic rights or mobility rights.

Quebec has seen the most public discussion about their use of this clause, overturning legislation pertaining to the language mandates in order for them to maintain French as the only language on signs.

Other provinces have used the notwithstanding clause, such as Saskatchewan with the School Choice Protection Act, which prevented the government from funding non-Catholic students attending Catholic separate schools.

But Ford has used the notwithstanding clause in quite an unconventional manner. Rather than using it to quash a bill or act of legislation, his government used it as a way to nullify the court’s negative ruling on a bill.

The bill was, of course, put forward by the Ford government.

“The people want smaller government, they want lower taxes, they want lower hydro rates, they want to make sure that they have good paying jobs and they want a city of Toronto that is functional,” Ford said while discussing the new bill which would dramatically decrease the number of city councillors in Toronto from 47 to 25.

Ford ran on a platform criticizing the previous government’s high taxation and went as far as proposing an audit on the previous government’s spending.

“We’re going to restore responsibility, accountability and trust in government,” he said.

The irony of this statement should be noted.

Wayne MacKay, a professor of law at Dalhousie University said the use of the notwithstanding clause in such a situation sets a bad precedent for future politicians.

“I think it is a legitimate concern, because of the odd times in which we live in, in terms 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,” MacKay said.

Ontario has entered into a strange time in politics and it’s unlikely that this will have subsided after Toronto’s city council vote on Oct. 22.