The Notwithstanding Clause, Premier Ford, and the Toronto Council Ruling

This afternoon, Premier Doug Ford announced that he would invoke the “Notwithstanding Clause” (Section 33 of the Charter of Rights and Freedoms) to override the recent decision by Justice Edward Belobaba stating that the hasty move of Bill 5 “clearly crossed a line” when it significantly reduced the number of representatives that would be elected in the City of Toronto.

Doug ford notwithstanding clause Toronto

The full decision can be found here. 

This controversial move will undoubtedly be met with considerable criticism and support, and likely to fill the airwaves and headlines over the next day or two. One of the immediate questions asked by many is “what is the notwithstanding clause?”.  Very few Canadians outside law graduates have ever heard of such a thing – perhaps because it is used so sparingly by provincial governments. So rare that only two provinces and one territory have ever used it since the Charter’s enactment in 1982.

What is the “notwithstanding clause”?

The notwithstanding clause, enshrined within section 33 of the Canadian Charter of Rights and Freedoms, is a compromise that was made among provinces while negotiating the contents of the Charterin 1981 at the First Minister’s Conference. This clause is oft-referred to as a protection for Parliamentary sovereignty. This will be the first time section 33 has been invoked in Ontario.

The ‘sparknotes’ of the Section 33 of the Charter

Section 33 is a temporary, albeit powerful, “opt-out” clause entrenched in the Charter.

The notwithstanding clause allows for the enactment of legislation notwithstandingthe ways it may violate an individual’s Charter rights.

Section 33 explicitly states that if the notwithstanding clause is invoked, “that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter”.

This legislative protection expires after five years, at which time the legislation must be reviewed. However, it is within Parliament’s prerogative to re-enact the same legislation with the same notwithstanding clause.