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Ontario Premier Doug Ford speaks to reporters in Toronto on Sept. 10, 2018. He’s vowing to invoke the seldom used notwithstanding clause in his fight to slash the size of Toronto city council. THE CANADIAN PRESS/Christopher Katsarov.

The history of the notwithstanding clause

For just over 35 years, we have pretty much let Canada’s notwithstanding clause gather dust — except in Québec and Saskatchewan and, now, in Ontario as Premier Doug Ford vows to wield it in his battle to cut the number of Toronto city council seats.

Ford, now the first Ontario premier to threaten to invoke the clause, also pledged to use it in the future if necessary.

“We’re taking a stand,” he told a news conference.

The notwithstanding clause, negotiated to win provincial support for the Charter of Rights and Freedoms, allows a government to temporarily override basic Charter human rights and legal rights.

In his remarks at a gala dinner in December 2017 celebrating the retirement of his appointee, Chief Justice Beverly McLachlin of the Supreme Court of Canada, former prime minister Jean Chretien — who played a major role in negotiating the notwithstanding clause — took pride in the fact that Ottawa has never invoked it. He made the point as a tribute to McLachlin’s stewardship of the Charter during her long tenure.

Stephen Harper’s Conservative government toed this line, opting against invoking the notwithstanding clause on several occasions, lastly with regard to the Supreme Court’s assisted dying judgment in 2015. It’s not clear why Harper stayed his hand as he was none too pleased about various Charter losses before the Supreme Court.

This may be why.

‘Can we trust you, sir?’

In the 2004 election campaign, an open letter to Harper from some leading Canadians urged him to promise not to invoke the clause. The letter was entitled Can we trust you, sir, to defend the Charter?

Strangely, during arguments on an application by Ottawa in the wake of the assisted dying decision for more time to develop legislation, Justice Russell Brown, a Harper appointee, entered the fray.

He suggested there was no need for the application since the federal government could take all the time it needed by using the notwithstanding clause. Ottawa was unmoved, and the Supreme Court granted a four-month extension.

While Ford is now pledging to use the clause, outside of Québec, only Saskatchewan has lawfully proclaimed a bill invoking the notwithstanding clause. Premier Grant Devine wielded it in 1986 in order protect a back-to-work law from Charter scrutiny by the Supreme Court.

Yukon introduced a bill invoking the clause to protect a land development measure. However, it was never proclaimed.

Alberta threatened to use the clause to deny compensation to victims of forced sterilization.

Ontario joins Québec

And a private member’s bill in Alberta, with the support of the government, purported to invoke the notwithstanding clause to block same-sex marriage. This was useless as provinces have no Constitutional jurisdiction over the definition of marriage.

Though not since the turn of the century, Québec has invoked the notwithstanding clause a number of times. This was due to having been shut out of the 11th hour deal in 1981 that saw premiers resistant to the Charter get the notwithstanding clause in return for agreeing to a stipulation that it must have a five-year sunset clause.

Chretien, then the federal justice minister under Pierre Trudeau, cut this deal with his counterparts from Saskatchewan and Ontario late one evening in a kitchen in the Ottawa Conference Centre. It was known as the “night of the long knives.”

Jean Chretien, then Canada’s attorney general, signs the proclamation repatriating Canada’s constitution while Queen Elizabeth II watches in Ottawa in April 1982. The Constitution includes Canada’s Charter of Rights and Freedoms and the notwithstanding clause that allows provinces to opt out of adhering to the Charter. THE CANADIAN PRESS/Ron Poling

In order to protect the rights of politically vulnerable minorities, Ottawa and Ontario won the concession that any government opting to override Charter rights would have to consider carefully whether it was confident of successfully defending this move come the next election.

Is Québec about to use the clause?

There have been hints over the past year that Québec might wall off its niqab law from the Charter via the notwithstanding clause.

Calls to have the notwithstanding clause taken down from the shelf and dusted off are usually issued by social conservative groups.

A notable example was the campaign to persuade former Alberta premier Ralph Klein to wield the notwithstanding clause to keep sexual orientation out of the Alberta Individual Rights Protection Act.

Klein resisted, saying that it was pretty hard to argue with the reasoning of the Supreme Court in the Delwin Vriend case. Vriend was a teacher who was fired from a Christian college in Edmonton in 1991 because he was gay; the Supreme Court later ruled that his Charter rights had been violated.

Saskatchewan Premier Brad Wall is seen at the provincial legislature in March 2017. THE CANADIAN PRESS/Mark Taylor

A onetime aide in Grant Devine’s government, recently retired Saskatchewan premier Brad Wall, mused publicly about using the notwithstanding clause in 2015 to protect an essential services emergency law in response to a Supreme Court ruling against the province.

Saskatchewan’s Bill 89

In May 2017, Wall served notice that Saskatchewan would wield the notwithstanding clause for a second time. The Wall government’s Bill 89 would invoke the clause to further privilege already constitutionally privileged “denominational schools,” all but one of which are Catholic.

Bill 89, which has yet to be proclaimed into law, is a response to the Theodore case. The proposed legislation would give a green light to religious schools recruiting from public schools, as the Theodore Catholic school had done.

In the Theodore case, Judge Donald Layh ordered the provincial government to stop funding non-Catholics to go to Catholic school. That ruling, which drew from the Supreme Court’s Saguenay principle that the state must be neutral, noted that freedom of religion under the Charter required it to neither “help nor hinder” religion.

The court ruled that allowing a constitutionally privileged “denominational” Catholic school, with full taxpayer funding, to recruit students who are not of that denomination violates the Charter as it amounts to governmental “help” to a Catholic school.

Lessons from John Tory?

But Wall’s justification for wielding the notwithstanding clause was bigger than the Theodore case. He saw it as part of his government’s commitment to partially fund some 26 faith-based schools that aren’t sheltered by the Constitution.

He seemed undeterred by the Ontario electoral defeat of John Tory, now the mayor of Toronto, a decade ago over his “flaky pledge to fund all religious schools” while he was running to become the province’s premier.

The issue was political dynamite for the Progressive Conservatives in Ontario in 2007. It remains to be seen how it will play out in Saskatchewan, a province demonstrably not shy about using the notwithstanding clause.

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