What's The 'Notwithstanding Clause' And Why Is Ontario Premier Doug Ford Using It?

In response to a Superior Court ruling that a law cutting the number of Toronto city councillors was unconstitutional, Ontario Premier Doug Ford has announced his intention to pass a new version of the bill invoking the notwithstanding clause — a little-used charter provision that allows provincial governments to overrule justices.

The notwithstanding clause has never been used in Ontario, and it has raised some significant questions about how exactly this section of the Charter of Rights and Freedoms works.

What is the notwithstanding clause?

The notwithstanding clause — or Section 33 of the Charter of Rights and Freedoms — gives provincial legislatures or Parliament the ability, through the passage of a law, to override certain portions of the charter for a five-year term.

Where does it come from?

The notwithstanding clause has its roots in the 1960 Bill of Rights, largely seen as the precursor to the charter. The clause in its current form came about as a tool to bring provinces on side with then-prime minister Pierre Trudeau’s signature piece of legislation.

With charter negotiations ramping up in the early 1980s, Trudeau didn’t see the need for the clause, but provinces such as Alberta and Saskatchewan wanted an out should they disagree with a decision of the courts. In the end, Trudeau reluctantly agreed.

Constitutional lawyer Asher Honickman said the clause, which only applies to sections 2, 7 through 15 of the charter, was part of the grand compromise that got the charter enacted in 1982.

Has it been used before?

The notwithstanding clause usually comes up whenever there is a controversial court ruling. For instance, former prime minister Stephen Harper’s Conservatives were asked about, but refused to use, the clause on a court decision involving assisted dying.

While often debated, its use is much rarer. Quebec, as the only provincial government to oppose the charter, passed legislation in 1982 that invoked the clause in every new law, but that stopped in 1985.

In 1986, Saskatchewan used the clause to protect back-to-work legislation and Quebec used it again in 1988 to protect residents and businesses using French-only signs.

Alberta tried to use the clause in a 2000 bill limiting marriage to a man and a woman, but that failed because marriage was ruled a federal jurisdiction.

Wait, couldn’t this get out of hand?

The clause only applies to certain sections of the charter. For instance, it can’t be used against provisions that protect the democratic process — that would create a pathway to dictatorship.

The clause also can’t be used for more than five years at a time. This ensures that the public has the chance to challenge a government’s decision to use the clause in a general election before it can be renewed.