Explainer: What is the notwithstanding clause

The Ontario government has used the notwithstanding clause to impose contracts on 55,000 education workers in the province and ban them from going out on strike. The Ford government says it included the clause in its legislation in order to guard against constitutional challenges.

But what is this rarely used clause and what does it mean going forward.

WHAT IS IT?

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.

WHY IS IT IN THERE

The clause in its current form came about as a tool to bring provinces onside 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.

ITS STRUCTURE

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.

HOW ITS BEEN USED

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 June, Quebec passed a major reform to the province’s signature language law that reasserts the right of Quebecers to live and work in French. Bill 96 toughened sign laws and strengthened language requirements for businesses, governments and schools. Premier Francois Legault has said the entire bill is covered by the notwithstanding clause. A judge suspended two articles of that law in August, citing risks to access to justice, until the case can be heard on its merits.

Quebec also used the clause in its religious symbols law. Bill 21 was adopted in June 2019 and prohibits public sector workers who are deemed to be in positions of authority, including teachers, police officers and judges, from wearing religious symbols such as hijabs and turbans on the job.

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.

Ontario Premier Doug Ford invoked the notwithstanding clause in June 2021 for the first time in the province’s history to restore parts of the Election Finances Act that had previously been declared unconstitutional, enforcing a rule that third parties could only spend $600,000 on advertising in the 12 months before an election is called.

Ford had previously threatened to use the clause in 2018, when his government intended to slash Toronto city council seats during a municipal election. That attempt sparked outrage but the clause ultimately wasn’t invoked because the government successfully appealed a lower court decision that the move was unconstitutional.

REMOVING THE CLAUSE

The only way the clause could be removed from the Charter of Rights and Freedoms is through a constitutional amendment using the general formula. The change needs to be approved by the federal Parliament, the Senate, and at least seven provinces representing at least 50 per cent of Canada’s population (the 7 + 50 rule).

WHAT IT MEANS GOING FORWARD

In 2015, the Supreme Court declared the right to strike as constitutionally protected.

The use of the notwithstanding clause has roiled unions and shocked observers across the country, who fear it could embolden other governments to quash one of the most powerful pieces of leverage a union has in negotiations, without constitutional recourse.

“This intervention is incredibly dangerous because it is basically the government saying, we know we are violating these workers’ constitutional rights, and we’re going to do it anyways,” said Stephanie Ross, the director of McMaster University’s school of labour studies.

The move not only has significant implications for other major education unions currently negotiating with the province, but for unions across the country, Ross said.

“I don’t think any worker in Ontario or Canada should rest easy with the recourse to the notwithstanding clause to override workers’ rights,” she said.