The Ontario government’s recent use of the notwithstanding clause to undercut the rights of citizens – in this case, the right of education assistants, school custodians and librarians to strike – is a strategy all too familiar to religious and anglophone minorities in Quebec.
The move by the Ford government to attempt to pre-empt a strike by the school workers is a direct attack on collective bargaining and, by extension, the right to freedom of association. It highlights a deeply negative trend in Canadian politics that has dire implications for the rights of citizens and should concern everyone.
As we go to press, it appears as though the potential for the Ontario dispute to escalate into a massive, multi-sector labour action has caused the premier to offer to revoke the legislation and resume negotiations, as long as the school workers end their strike. Despite his ‘gesture of good faith’, as the premier describes it, what is difficult to fathom is how a law that blatantly attacks the concept of guaranteed rights could be passed in the first place.
It’s a question equally vexing for religious and anglophone minorities in Quebec where Bills 21 and 96 were passed by the Legault government using pre-emptive invocations of the notwithstanding clause, representing a direct attack on the right to freedom of conscience and the right to use a constitutionally-protected official language.
The repeated pre-emptive use of the notwithstanding clause shows that Canadians effectively do not have rights in the sense traditionally understood in the context of constitutional democracies. In theory, rights are supposedly inalienable and can be revoked only in exceptional circumstances as determined by an independent judiciary. The notwithstanding clause significantly minimizes the role of the judiciary and therefore a pillar of constitutional democracy. Effectively it allows politicians to advance narrow partisan and ideological causes without judicial scrutiny.
The whole point of a constitution is to establish the things that are beyond political debate by creating an order where rights and freedoms cannot be legislated away with a simple majority. The notwithstanding clause, however, which is unique to Canada among every other democracy in the world, makes it so the rights outlined in the Charter of Rights and Freedoms are functionally suggestions rather than real and meaningful guarantees.
Some might argue that the use of the notwithstanding clause has democratic legitimacy by virtue of the fact that its invocation requires the support of a majority of the representatives in a given legislature. But even this thin veneer of supposed credibility seems farcical when you consider the small number of eligible voters who actually vote and how, under our first-past-the-post rules, a fraction of those can elect a majority government.
In the recent Ontario election, only 44 per cent of eligible voters bothered to cast a ballot. Of those, 41 per cent voted for the Progressive Conservatives. In other words, the Ford government was given a majority by about 18 per cent of eligible voters.
Even if you think a bare majority of the population should be enough to supersede people’s charter-protected rights – a dubious claim from the get-go – governments elected under first-past-the-post rules do not even come close to meeting this standard.
Allowing the notwithstanding clause to continue to be used as it is now is unacceptable. Without it, the rights violations present in Bills 96 and 21 would easily be dealt with in the courts. Without it, hard-won labour rights which are the source of much of the equality enjoyed in this country wouldn’t be under threat right now. Without it, the looming specter of governments elected with a small fraction of the total population riding roughshod over our rights wouldn’t be a reality.
If rights are to be taken seriously, then we must abolish the notwithstanding clause. Whatever compromise made the notwithstanding clause seem necessary in the 1980s shouldn’t prevent our representatives from redressing it now. The belief that a tool as powerful as the notwithstanding clause would be used sparingly turned out to be a fantasy, so now is the time to get rid of it before things get worse.
This would require amending the constitution which, according to many pundits, would be “impossible.” But the idea that the Canadian constitution can effectively never be changed is absurd. We elect representatives to shape our society in a positive direction. If they aren’t capable of coming to some kind of consensus over what rights should be guaranteed, then we really need to examine the quality of our leadership, our politics and how Canada relates to itself.
If governments are allowed to get away with simply ignoring the courts and established legal precedent through the use of the notwithstanding clause, what they think they can get away with will only escalate.
