EDMONTON — Now that Ontario Premier Doug Ford has announced he will use the notwithstanding clause to override a court decision so his government can downsize Toronto city council, the question for many political observers becomes: who’s going to use it next?
The notwithstanding clause, a “classic Canadian compromise,” in the words of Alberta political scientist Ted Morton, was baked into the Canadian constitution to balance — and get the best of — an American-style setup of judicial superiority and a British-style system of parliamentary supremacy.
“It was one of the compromises, or changes, that (Pierre) Trudeau made at the end of the negotiations to get the Western premiers, Western provinces on-side,” said Morton. “The Western premiers didn’t trust Trudeau, and also, they didn’t trust the Supreme Court of Canada in those days.”
If the clause had its genesis in Western alienation, since its creation in 1982 it has mostly been used in Quebec, most famously to subjugate English-language rights to French-language rights — an application that has contributed to the belief elsewhere in Canada that its use represents something of a political third rail. It remains to be seen whether that will continue to be the case.
Ontario Premier Doug Ford leaves the Queens Park Legislative Chamber after the PC Provincial Government introduced “The Efficient Local Government Act” at the Ontario Legislature in Toronto, on Wednesday September 12, 2018.
“If you ask somebody, ‘Should governments, should majority governments have the power to override our constitutional rights,’ everybody would say ‘No,’ but if you ask people, ‘Should elected governments have the power to overrule judicial misinterpretations of the charter’ or ‘bad judicial decisions,’ I think most people would say ‘Yes,’” said Morton.
In the wake of Ford’s announcement, Alberta Premier Rachel Notley, for one, put the kibosh on the thought of her government ever using the override clause’s powers.
“I certainly hope it doesn’t set a precedent, because, to be clear, I think that the democratic process is paramount,” Notley said at a press conference Tuesday. “It will certainly not ever set any kind of precedent for our government, let me be very clear on that.”
Jason Kenney, leader of Alberta’s United Conservative Party leader, declined an interview on the subject Wednesday, but in the past has advocated for the clause’s use. In 1998, Kenney, who was then a Reform Party MP, told the now-defunct Alberta Report that the Vriend Supreme Court decision — which said sexual orientation was grounds for protection in provincial human rights legislation — could be subject to use of the notwithstanding clause.
“If the court rules to enforce gay rights, and the Alberta government rolls over, they will clearly be implicated in the decision,” Kenney said. “If, on the other hand, they have the courage to invoke Section 33, to use the one remedy in the Charter, they will have begun the recovery of democracy.”
Jason Kenney speaks to the media at his first convention as leader of the United Conservative Party in Red Deer, Alta., Sunday, May 6, 2018.
In an emailed statement Wednesday Christine …read more