The notwithstanding clause: A case for restraint

‘Safety valve’ was originally meant to be used sparingly, says John D. Whyte.

The Ontario Court of Appeal has now stayed — that is, it has delayed implementation of — the lower court’s decision that the Ontario legislature’s reduction of the City of Toronto council from 47 to 25 members in the midst of the municipal election is unconstitutional.

That decision was based on the holding that changing the rules and structure of an election in mid-campaign violates the Charter of Rights and Freedoms’ protection of freedom of expression.

The stay will bring an end to this legal battle, and will make Ontario’s use of the special power to override the charter beside the point. This is because the lower court’s decision that reducing the size of the council violated the charter was not based on the reduction itself, but on the timing of it.

Now the election that Ontario Premier Doug Ford wanted will go ahead, and the timing of his change will not be relevant to future elections. Ford has won.

The Ontario battle demonstrates that the charter’s “notwithstanding clause” — the legislative overriding of charter rights — remains controversial.

The history of the formation, on Nov. 4 and 5, 1981, of the Constitutional Accord is important to this debate.

The accord led to Canada’s constitutional independence from Westminster and to the adoption of a constitutional Charter of Rights and Freedoms, including the override power, which was inserted into the constitutional agreement (at the insistence of some premiers) just a matter of hours before it was signed.

These premiers believed that a safety valve was needed to allow legislatures to remove charter-based rights or overturn charter decisions whenever legislatures feared that granting the right would threaten political stability or interrupt important public regulation.

Then prime minister Pierre Trudeau was anything but happy with this proposal; it defeated the plan that Canadians enjoy entrenched human rights and replaced them with politically contingent rights, easily stripped away by legislative majorities.

Nevertheless, he accepted the premiers’ proposal in order to conclude an agreement for constitutional reform.

The premiers saw their proposal in less drastic terms. Their view was that the override power would be rarely exercised, only when the exercise of a charter right would fundamentally damage society’s stability and well-being.

For them, using the override power without first calibrating harms would deviate from the purpose behind the “notwithstanding clause.”

The “notwithstanding clause” is not unique in the Canadian Constitution. It is one of four clauses that provide for legislative override of basic constitutional arrangements. The other three instances, all found in the 1867 Constitution, gave Parliament — or the federal government — power to override valid provincial laws.

These override powers were exercised in earlier decades. But their use violated the nation’s constitutional architecture and the federal pact on which Canada was founded.

As a result, they came to be seen as unsuitable, fell into disuse, and have not been used for many decades.

The same concern is, perhaps, one reason why the charter’s override power has been put

into effect only three times in the 36 years of its existence, and not at all for three decades.

While this is not an argument against ever using the override power, it explains why it is thought to be suitable only after carefully weighing political necessity against protecting constitutional values.

Of course, the power simply to sweep away constitutional limits appeals to those who regard political power as an unbounded right to exercise control over all political opposition. But liberal democracy is built on carefully honed structures of accountability and open deliberative processes.

A nation’s practices in mediating difference of opinion — the practices of debate and accommodation, the rules of political restraint and constitutional limits on power — are as vital to maintaining democracy as are fair elections. Creating and using override powers can be a suspect practice.