Premier Doug Ford’s unprecedented use of the controversial “notwithstanding clause” of the Charter of Rights and Freedoms poses a new challenge to the Toronto officials who is gearing up for another legal battle over Ontario’s plans to slash the city council.
The options are very limited in this unfamiliar legal territory.
“It’s going to be an uphill battle,” said Nader Hasan, constitutional lawyer and partner at the Toronto firm Stockwoods LLP.
City Councillors will meet on Thursday to discuss the province’s revised legislation, tabled on Wednesday, which invokes the notwithstanding clause to override a Superior Court judge’s ruling that struck down the previous version. The province is looking to reduce the number of council seats from to 25 from 47, claiming it will save money.
The Clause, also known as Section 33, allows governments to pass laws that appear to violate certain charter rights and has never before used in Ontario, or at the Federal Level,
It is considered a nuclear option and has been politically polarizing — and powerful — since it appeared in the Constitution four decades ago.
“There’s very little in the section itself that sets any limits,” said Cheryl Milne, executive director of the David Asper Centre for Constitutional Rights, an advocacy group affiliated with the University of Toronto.
Hasan puts it another way: “It is the final say. That’s how it was crafted.”
But that doesn’t mean a challenge is impossible. It’s just tricky given the lack of case law because the clause has rarely been invoked successfully and the result is hard to predict even for scholars of constitutional law.