Waking The Giant: Charter Litigation Under The Spectre Of The Notwithstanding Clause

One of the new provincial government's most controversial early initiatives was reducing the size of Toronto City Council.

Outraged opponents took to the courts, and the Superior Court found the Better Local Government Act, 2018 invalid on the basis of section 2(b) (freedom of expression).1 The Premier quickly responded by invoking section 33 of the Canadian Charter of Rights and Freedoms2 to override the decision. This is the first time Ontario's legislature invoked section 33, more commonly known as the Notwithstanding Clause.

Introduced on September 12, the Efficient Local Government Act, 2018 (Bill 31)3 provided the legislation operate "notwithstanding sections 2 and 7 to 15 of the Canadian Charter of Rights and Freedoms." As the bill moved through the legislature, the government also appealed the decision. When the Court of Appeal stayed the decision pending the outcome of the appeal,4 the use of the Notwithstanding Clause, and Bill 31 more generally, became moot.

However, Premier Doug Ford has said that he "won't be shy" about using Section 33 if the courts thwart his agenda.5 And recently elected Québec Premier François Legault has since announced he would use the Notwithstanding Clause to prevent Québec civil servants from wearing religious symbols.6 We are therefore taking this opportunity to review the functions and limits of the Notwithstanding Clause, and to consider some implications for litigation involving Ontario's new government.

Historical Use

Section 33 was a historical compromise between Prime Minister Pierre Trudeau and the provincial premiers with whom he negotiated the text of the patriated Canadian Constitution. Since then, it has been invoked infrequently. This is likely due in part to the development of a robust body of case law under section 1 of the Charter, which permits deference to infringements of Charter rights that can be "demonstrably justified in a free and democratic society."7 As a result, legislators have often not needed to invoke section 33 to further their agenda. Other times, they have presumably determined that the political consequences of overriding constitutionally guaranteed rights would be too high. However, the Notwithstanding Clause has been invoked in a handful of cases at the provincial level.

From 1982 to 1985, the Government of Québec demonstrated its opposition to the new Constitution (which it had not signed on to) by including section 33 in every statute passed by the National...