Ontario Premier Doug Ford’s decision to invoke the extension clause a second time has sparked a public debate that cuts to the heart of the Constitution. At the heart of this debate is whether the Charter of Rights and Freedoms can still be said to exist in practice when some prime ministers appear willing to normalize the use of Article 33 of the charter, which allows governments to temporarily override other parts of the document. The NDP opposition in Ontario, the New Democrats in Ottawa and the federal Liberal government have cried foul, saying the use of the extension clause encroaches on the rights of Canadians. “Canadians themselves should be extremely concerned about the growing community of provincial governments proactively using the clause to suspend their fundamental rights and freedoms,” Prime Minister Justin Trudeau said Friday. “The Charter of Rights and Freedoms cannot be a proposition. The outrage that we’re seeing across the country right now … I think it’s a moment for all Canadians to think about.” Here’s a look at the notwithstanding clause, how it came to be, and how it’s used now. Watch: Trudeau Talks Ford About Using Extension Clause
Trudeau spoke to Ford about using the extension clause
Prime Minister Justin Trudeau said he asked Ontario Premier Doug Ford not to preemptively invoke the illegal clause.
What is the derogation clause?
The derogation clause, or section 33 of the charter, gives Canada’s parliaments the power to override certain parts of the charter for a five-year term when enacting legislation. The clause can only override certain sections of the charter — including Section 2 and sections 7 to 15, which deal with fundamental freedoms, legal rights and equality rights — but it cannot be used to override democratic rights. Once invoked, section 33 prevents any judicial review of the legislation in question. After five years, the clause ceases to have any effect — unless it is reinstated.
Why do we have it?
In the early 1980s, Pierre Trudeau’s Liberal government wanted Canada to have its own constitution with an entrenched bill of rights. But negotiations stalled over concerns that the proposed Bill of Rights would be too powerful. “There were a number of people, including several provincial premiers at the time, who were concerned that this would upset the balance of power between the federal and provincial governments and put too much power in the hands of the courts,” said Carissima Mathen. , Professor of Law at the University of Ottawa. “Some prime ministers have argued that there should be … a kind of escape from certain charter rights.” To ensure that federal and provincial parliaments retained primacy over the courts, the clause was included in the charter, accompanied by certain expectations about how it would be used. “At the time it was meant to be used in the most unusual circumstances,” said Wally Oppal, a former BC attorney general and judge of both the provincial Supreme Court and the Court of Appeal in British Columbia. “The reason I’m saying that is because you’re violating people’s rights, you’re violating the terms of the supreme law of the land. And if you are going to do this, then it should only be done in the most unusual and extenuating circumstances. “
Why did the Ford government invoke the clause?
The Ford government has been embroiled in a dispute with the Canadian Union of Public Employees (CUPE) over the union’s demand for an 11.7 per cent annual raise for 55,000 teaching assistants, preschool teachers, custodians and administrative assistants. The union says it has more than halved its wage proposal in a counteroffer it made to the government last week and has made “substantial” moves in other areas too. The provincial government has said it will not negotiate unless CUPE calls off a planned strike. The union says that, from 2012 to 2021, wages for education workers increased by about 8.5 per cent, while inflation in Ontario rose by 17.8 per cent, meaning workers took a significant pay cut during this period. The government offered raises of two percent a year for workers earning less than $40,000 and 1.25 percent for everyone else. CUPE rejected the offer and talks collapsed. On Friday, thousands of education workers across the province hit pickets for the first day of an indefinite strike. Ontario introduced back-to-work legislation that mandates a four-year deal that gives 2.5 per cent annual raises to workers making less than $43,000 and 1.5 per cent raises for everyone else. In introducing this legislation, the Ford government invoked the outlaw clause.
Did the Ford government use the clause correctly?
This is very much a matter of debate. Lametti this week described Ontario’s use of the clause as “precautionary.” “It was going to be the last word for a legislature to exercise parliamentary sovereignty,” he said. “If used at first, it embodies Canadian democracy and means the map doesn’t exist.” At that point, experts who spoke to the CBC said they agreed the clause was used preemptively — but that doesn’t mean the Bill of Rights has ceased to exist. “I think that use is premature. I think it’s untimely. But I don’t deny the legality of using the extension clause and I certainly don’t deny the constitutionality of using that clause,” said Benoit Pelletier. a law professor at the University of Ottawa and former Minister of Intergovernmental Affairs in the Quebec government of Jean Sarres. Watch: ‘Preemptive use of derogation clause is undemocratic’: Justice minister
Minister of Justice: “The preventive use of the clause is nevertheless anti-democratic”
Justice Minister David Lametty discusses Ontario’s use of the derogation clause in its dispute with Ontario educators. Geoffrey Sigalet, director of UBC’s Center for Constitutional Law, told CBC News he’s not at all surprised the Ford government chose to invoke the clause so early in its dispute with CUPE. “I think there is not necessarily a constitutional issue with the Ontario legislature invoking the clause that does not apply in the context of a policy where it has a potentially different view of what charter rights mean, in that context, than what the Supreme Court could have ruled.” he said.
What does Ford’s use of the clause mean going forward?
The repeated use of the clause in recent years warns that it could become a common tool for governments. In June 2021, Ontario invoked the clause for the first time in the province’s history to limit third-party election funding. The Ford government threatened to use it in 2018 to keep its plan to reduce the number of seats on Toronto City Council before the courts sided with his government on the cut. Francois Legault’s Quebec government preemptively invoked the clause to support Bill 21 — which bans the use of religious symbols by public sector workers — and Bill 96, the government’s new language law. Experts told CBC News that Canadians should wait to see governments use the clause again. “Once you break that rule, once you cross the bridge and you look to see what the political consequences are, and if the political consequences don’t seem very strong to the government, then unfortunately I think what you start to see is a temptation to use it,” Mathen said.
Can the clause be removed?
The Canadian Civil Liberties Union told CBC News it wants to see the clause scrapped. “The notwithstanding clause must be repealed to protect the fundamental rights of all people, whether it is people’s right to protest and dissent, or people’s right to demand decent working conditions, or people’s right to equality,” said Noa Mendelsohn Aviv, executive director of CCLA. Repeal is unlikely, experts said, because it would require provincial consent to a constitutional amendment. No government is willing to reopen the Constitution, and the provinces are unlikely to surrender the leverage the clause gives them anyway. “There’s no way the provinces would agree to this. Why would they agree to their only tool to resist judicial activism?” Sigalette said. “That’s not going to happen.”
