When a law is overturned by the courts for violating the Charter of Rights and Freedoms, the federal or provincial governments usually either appeal or rewrite the offending legislation to ensure that those rights and freedoms are protected.
Ontario isn’t going down either path. Premier Doug Ford is using the notwithstanding clause in Section 33 of the Constitution Act to overturn a judge’s decision that his government’s bill restricting third-party election expenditure is not a legitimate restriction on freedom of expression.
Ford convened a special session of the legislature on Thursday and revealed plans for a weekend marathon session to pass legislation using the notwithstanding clause. The final vote is scheduled for Monday. Ford isn’t the first governor to try to use the notwithstanding clause to his advantage. He isn’t the first to question if it is being used in the way its creators intended.
It’s been used a lot in Quebec; Premier François Legault utilized it ahead of time to head off any legal objections to Bill 96, which aims to protect the French language in the province. Saskatchewan also used it to challenge a 2017 court decision on Catholic school financing. Dwight Newman, a legal professor at the University of Saskatchewan, defended then-premier Brad Wall’s decision at the time.
“The notwithstanding clause was an important aspect of the constitutional discussions that led to the adoption of the Charter in 1982. Without it, some provinces were hesitant to join the coalition “He published an article in the National Post.
“Those who contend that the notwithstanding clause is unconstitutional must show how the rest of the Charter would be unconstitutional without it.” Now it’s Ford’s chance to make a new argument about the value and purpose of permitting governments to override the courts and the charter’s basic rights.