Ford’s use of notwithstanding clause should be a warning for minority communities

On November 3, Ontario Premier Doug Ford pre-emptively invoked the notwithstanding clause to prevent education workers from striking. The clause allows governments to circumvent the Charter of Rights and Freedoms, and in this case, trampled on labour rights in the province. This action should be taken as a warning that minority rights are increasingly under threat of populists who don’t fear the traditional prohibition against using such extreme tools to achieve their ends. While Ford was ham-fisted and overplayed his hand when trying to engage in constitutional hardball, the next premier or prime minister may not be as incompetent, so minorities, including queer and trans communities, should be concerned.

So, just what is the notwithstanding clause and why does it exist? During constitutional negotiations in 1982 to patriate the original British North America Act from the U.K., and to create the Charter of Rights and Freedoms, numerous premiers resisted the Charter as it signified  an end to parliamentary supremacy in Canadian legislation. The fear was that this would empower the courts to engage in law-making, much as we’ve seen happen in the U.S., and they wanted a safety valve. Thus, as a compromise, Section 33 was born, and it gave governments the ability to legislate an exemption to Charter rights for a period of up to five years, with the expectation that the voting population would be able to vote out the government that invoked the exemption if they felt strongly enough about it. It was also a way of pushing back against court judgments that were deemed unreasonable, as Saskatchewan did in 2017 over a Supreme Court of Canada ruling around public funding of Catholic schools.

There are those who will insist that the courts went ahead and still invented rights, or legislated from the bench, but this particular viewpoint neglects the fact that in the wake of the Charter and courts filling out the rights framework in the Charter, legislatures started stepping back from their own responsibilities. It was politically easier to let courts do the heavy lifting around expanding rights, especially when it came to controversial topics like abortion or same-sex marriage. The incentives for politicians shifted so that they would rather let the Court rule and take the heat, while politicians could make a show of being dragged, kicking and screaming, to appease their socially-conservative bases (most especially among Liberals in the 1990s), but ultimately live with the decision. As an example, Alberta made a show of threatening to invoke the clause around things like the Vriend decision, so that gays and lesbians could no longer be fired for their sexuality, but never followed through because they put on their show already.

The history of the clause’s use in Québec, however, has differed from the rest of Canada. There was a period of time where it was invoked in every piece of government legislation as a kind of rebuke of the notion that Québec did not sign onto the Charter in 1982 (though the logic of this assertion is dubious as the province was governed by a Separatist party that would never sign on, and every Québec MP in the federal Parliament voted for it). It has only been in recent years that the Québec  government has invoked it pre-emptively in order to avoid court challenges of problematic legislation around language rights and so-called “secularism” that primarily targets Muslim women. Those uses are the subject of ongoing court challenges, which the federal government has stated they will support when they reach the Supreme Court of Canada (which is perfectly appropriate as a tactic so as not to bigfoot the civil society players involved).

Where things differ in Ontario, and under Ford, is the use of the clause in order to achieve his own partisan ends. Ford initially threatened to use the clause to push through his plan to reduce the size of Toronto City Council after the civic election was already underway in 2018, but the Ontario Court of Appeal sided with him (as did the Supreme Court later on), and he didn’t need to. Nevertheless, when his attempt to limit third-party advertising in provincial elections was ruled unconstitutional, Ford invoked it at that point to push the legislation through, and it benefitted him in the last provincial election. Left-leaning groups that were critical of him were no longer able to advertise. The opposition parties had completely lost their ability to fight on those terms, having let those groups do the fighting for them in past election cycles, while their leaders focused on likeability. Unfortunately, those leaders spent the election trying to out-beige one another, and both failed spectacularly, and neither made a convincing case that Ford had abused the clause, which is a problem for our politics.

With the most recent invocation, which Ford promises to rescind when the legislature resumes sitting next week, Ford was sending a message to the labour movement in the province that he was going to get his own way and impose contracts with effective wage cuts in them, rather than let the Canadian Union of Public Employees (CUPE) set the bar as the first of several contracts up for negotiation. It failed, but it was a direct attack on labour rights, which the right-wing in this country deems as having been imposed by the Supreme Court of Canada, rather than by legislatures or Parliament. And even more worrying was the way in which right-wing commentators and Doug Ford apologists lined up to insist that his use of the clause was not abusive or illegitimate because the clause exists to be used. It also raises questions on where these right-wing populists plan to use this clause to curtail rights next, and when you look at the level of discourse against trans people in particular, but the queer community more broadly, as part of escalating moral panics in the imported American culture war. There is reason to be concerned. 

So, is there something the federal government can or should be doing to keep provincial leaders in check? Unfortunately, there aren’t a lot of options. There are legitimate reasons why the clause exists (and many experts point to the Saskatchewan example), and limiting the ability to use it would require a constitutional amendment that would likely require seven provinces, representing at least 50 percent of the population, to sign on. When you have both Ontario and Québec in the habit of invoking the clause, that’s not likely to happen. There are those who think the federal government should revive the constitutional power of disallowance, which theoretically allows a federal government to overturn any provincial law. But those powers are for all intents and purposes a dead letter given our constitutional evolution and would essentially be a declaration of war on the province in the current environment, which could take us from a constitutional crisis into a national unity crisis.

The most important thing queer and trans communities need to remember is to organize and find allies, so that when provincial governments—or even a future federal government—attacks our rights, we ensure that it’s politically poisonous for them to do so. It worked in Ontario—the labour movement and civil society pushed back against Ford, and under the threat of a general strike, he backed down (though not enough, really). It’s why we can’t become complacent, particularly in the current political climate.