Nevertheless, he persisted with notwithstanding
A brief history on the notwithstanding clause
It is often said that kitchens cemented themselves in the mythos of Canada in March 1981. Some even argue that without kitchens, the provinces would have stalled any and all drafts of a constitution in Canada, regardless of its content.
During discussions on the budding drafts of the Canadian constitution, Jean Chrétien met with Roy Romanow and Roy McMurtry in the Government Conference Centre culinary canteen. He refused to let the Saskatchewan and Ontario attorney generals out of the meeting until some sense of consensus could be met. Together, they let Pierre Elliott Trudeau’s minister of justice know that the federal government couldn’t pass the constitution if courts were left unchecked. The provinces wanted parliamentary supremacy and Chrétien offered it as a preliminary version to what would become the notwithstanding clause. The meeting is now historically referred to as “The Kitchen Accord.”
Before the end of the next year, Pierre Elliott Trudeau had signed the Canada Act, 1982 and the Constitution Act, 1982, encoding the override as section 33 of the Charter of Rights and Freedomswithin the constitution of Canada: all due to a state-owned kitchen.
Since its inception, section 33 of the Charter — the notwithstanding clause — has been sparsely enforced. In Québec — other than a blanket use of it between 1982 and 1987 by the elected Parti Québécois (PQ), Québec has only since invoked the override once — in 1988 — for the French-Language Sign Law.
Saskatchewan, the second-most active user, first invoked the notwithstanding clause to break a strike in 1986. Its second invocation fell earlier this year when a judge ruled that the Saskatchewan government is not constitutionally obligated to pay for non-Catholic students to attend Catholic schools.
The federal government of Canada has never invoked section 33.
Doug Ford’s use of the notwithstanding clause
Fast forward around 37 years to the summer of 2018: Doug Ford has been elected and sworn into office. With two months and a few days into his mandate, Ontario’s Premier invoked section 33. It passed through Queen’s Park on Sept. 18; this is Ontario’s first use of the override.
The administration’s decision has divided mainstream political commentary, even forcing the initial Kitchen Accord architects to release a joint statement through the Toronto Star on Friday, Sept. 14. The statement read: “We condemn his actions and call on those in his cabinet and caucus to stand up to him.”
Further, Vic Fideli, MPP of Nippissing and current minister of finance in Ford’s cabinet, said in a public statement to the press on Sept. 16 that “Canada’s constitution makes it clear that the province has exclusive responsibility over municipalities.”
According to the Toronto Star, more than 400 legal scholars have urged the attorney general of Ontario, Caroline Mulroney, to “value the role of the judiciary,” but Mulroney, who overlooks the provincial justice system, has been silent.
Conrad Black, retired media baron and National Post columnist, even went so far as to write in a recent column that Ford “has taken the first vital step toward the restoration of the high court of Parliament.”
The spokesperson of Opposition Leader Andrew Scheer piped in saying that Ford was well within his provincial powers to invoke the override, according to Global News. The Canadian Press reports that Prime Minister Justin Trudeau released a statement that he was disappointed with Ford’s use of the override.
In spite of political grandstanding, the shenanigans in Queen’s Park have only worsened.
On Sept. 12, Speaker Ted Arnott ejected Andrea Horwath — leader of the Ontario New Democratic Party — after she and her party protested the handcuffing and removal of spectators in the public gallery by Arnott.
Horwath later called Ford “an out-of-control premier,” as reported by the Toronto Star and numerous other media outlets.
In response to the raucous, the legislature booked extra time: an emergency midnight session on Friday, Sept. 14, and an emergency session on Saturday, Sept. 15. After little progress in Friday’s session, Ford threatened Queen’s Park standing orders in an attempt to silence opposition.
With a Conservative majority, it is very likely that this current invocation of the override will pass through Queen’s Park. Once passed, section 33 guarantees five years to ignore the courts for that specific issue.
Sadly, there is no limit on how often Ford can invoke the notwithstanding clause between now and the next election in three years and nine months’ time.
Hopefully another kitchen of compromise arises before either of those deadlines. Otherwise, Ontario voters have to choose between toasting to parliamentary supremacy or protesting each invocation along the way.
Notwithstanding Facts
- The notwithstanding clause, also known as section 33 of the Charter, allows the provincial and federal parliaments to override any constitutional challenge to their legislation for up to five years, provided their laws are accused of challenging sections 2 or 7 to 15 and those challenges are within the authority/jurisdiction of the parliament passing the legislation.
- Basically, if a court rules that a law made by parliament is unconstitutional, then parliament has the power to ignore the judiciary for five years and proceed as if their law is constitutional.
- The concept of parliament possessing the power to have final say on their laws in spite of judicial review is known as parliamentary supremacy.
- Public opinion against the Parti Québécois’s use of section 33 attached political toxicity to its use.
- Ever since PQ lost power in 1987, the notwithstanding clause has only been used by Yukon, Saskatchewan, and Québec. Alberta has threatened to use the override in the past, but has never followed through. It has never been used by the federal government, in spite of the fact that it is well within their purview.
- This is Ontario’s first invocation of the notwithstanding clause.
Illustration by Barbara Salsberg Matthews