Who Makes the Law?

Doug Ford’s Use of the “Notwithstanding” Clause: Keeping Ontario’s Schools Open

Grant A. Brown
November 10, 2022
As Canada’s courts continue to invent novel new rights for Canadians, conflicts with law-making governments become ever-more common. Decisions that are political in nature are increasingly made by unelected but intrusive judges, eroding the authority of legislatures – and the sovereignty of the people who elected them. It is time to swing the pendulum back, asserts Grant A. Brown. And the Charter’s “notwithstanding” clause, he believes, is a legitimate constitutional means to do so. This logic was on display last week when the Ontario government used the notwithstanding clause in back-to-work legislation meant to keep the province’s schools open. While a deal this week with the union representing illegally striking educational support workers led Doug Ford’s government to withdraw the law, its purpose was served. Are other provinces taking note? 
Who Makes the Law?

Doug Ford’s Use of the “Notwithstanding” Clause: Keeping Ontario’s Schools Open

Grant A. Brown
November 10, 2022
As Canada’s courts continue to invent novel new rights for Canadians, conflicts with law-making governments become ever-more common. Decisions that are political in nature are increasingly made by unelected but intrusive judges, eroding the authority of legislatures – and the sovereignty of the people who elected them. It is time to swing the pendulum back, asserts Grant A. Brown. And the Charter’s “notwithstanding” clause, he believes, is a legitimate constitutional means to do so. This logic was on display last week when the Ontario government used the notwithstanding clause in back-to-work legislation meant to keep the province’s schools open. While a deal this week with the union representing illegally striking educational support workers led Doug Ford’s government to withdraw the law, its purpose was served. Are other provinces taking note? 
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In the wake of Ontario’s Conservative government invoking the Charter of Rights and Freedoms’ “notwithstanding clause” to pre-empt the inevitable legal challenge to the province’s new back-to-work legislation, everyone is once again reminded that the Charter contains within itself the means by which politicians can circumvent the rights of citizens set out in the Charter – or in some cases, the special legal privileges created by judicial fiat under the guise of the Charter. Much wringing of hands and pounding of keyboards has ensued, most of it warning of the dire damage to our democracy this use of Charter Section 33 to prevent 55,000 unionized educational support workers from walking off the job and closing schools will bring. Some commentators have even labelled the notwithstanding clause the “nuclear option.”

This is how I learned to stop worrying and love the bomb.

The pundits and activists who talk as though Charter rights are sacrosanct when opposing Ontario’s (or other governments’) use of the notwithstanding clause also tend to be the most nonchalant about Charter rights in the first place. “There are no absolute rights,” you’ll often hear them say. “Every right needs to be balanced and weighed against every other right, and against the public interest.” This sort of thinking has a long trail and has served to rationalize the trampling of fundamental rights.

The “nuclear option”: Critics decry Ontario premier Doug Ford’s invocation of the notwithstanding clause as an attack on the Charter rights of Canadians and even upon Canadian democracy. (Sources of photos: (top) The Canadian Press/Christopher Katsarov; (bottom) The Canadian Press/Spencer Colby)

An emblematic example was the case of Trinity Western University (TWU), a B.C. college that held its students to a code of traditional Christian morality – including sexual abstinence before marriage, which was traditionally defined. After law societies in B.C. and Ontario barred TWU’s graduates from practising law based on TWU’s “discrimination,” the Supreme Court of Canada in 2018 decisively overturned lower-court rulings that had gone in favour of TWU and instead upheld the law societies’ violation of the fundamental right to freely practise religion. Rather than rushing to the barricades on behalf of a small institution and its graduates whose rights were violated, most of the Charter commentariat and legal activists were just fine with it.

This same line of thinking was put into service during the pandemic: “Of course citizens have the right to freedom of expression. But if a regulatory body with delegated authority from the government revokes their licence to practice medicine for questioning or criticizing the government narrative on the pandemic response, that’s completely understandable.” Since court cheerleaders find Charter rights so trifling that they are happy to see them overridden by nothing more than an appeal to the “public interest” or “the science” – without persuasive evidence or even compelling logic – it is hard to take seriously their umbrage when a conservative leader uses s. 33 to abridge the same nuisance “guarantees” in a different context.

As things stand, governments and government agencies override Charter rights every day in almost every way. Courts interpret some Charter rights expansively – Indigenous rights are a prominent example – such that a great many laws, regulations, and administrative decisions must inevitably fall afoul of those rights. Courts then decide which laws, regulations and administrative decisions should nevertheless be permitted under s. 1, which reads that the Charter “guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

Some conditions apply: The Charter’s clearly stated freedoms have not always been upheld. Trinity Western University’s attempt to defend its Christian values and medical practitioners’ disagreement with the government Covid-19 narrative were trampled using simplistic appeals regarding “discrimination,” the “public interest” and “science”. (Sources of photos: (left) One TWU/Facebook; (right) Patrick Morrell/CBC)

More often than not, courts side with the government and allow the Charter breach to stand. In the pandemic cases that have recently come to court, courts routinely defer to the government’s bald assurance that “the science” dictates Charter breaches rather than insisting the government “demonstrable justify” the breaches, as s. 1 plainly requires. Once one appreciates how far from sacrosanct our Charter rights have become, the objections to invoking the notwithstanding clause grow far less persuasive. They start to look downright suspicious – almost like plain politicking.

The traditional defence of the notwithstanding clause is that it preserves a measure of supremacy for legislative bodies – the bodies that Canadians elect. It enables a provincial or federal government to purposely suspend a Charter right through a statute that cannot then be overturned by the courts. (The notwithstanding clause requires that such laws expire after five years.) Elected politicians may thereby get the final say for as long as they can keep re-enacting the impugned statute.

This defence of the notwithstanding clause is typically coupled with the observation that legislatures are in a better position than courts to conduct the kinds of balancing and weighing of interests and social outcomes required to delineate the contours of rights. Politicians get daily feedback from their constituents and legislative committees can consult broadly. By contrast, judges are limited to adjudicating the interests of the two parties before them.

This argument crystallizes when one examines the substance of what Ontario premier Doug Ford was trying to accomplish with Bill 28 – something the court cheerleaders are pointedly avoiding. The pandemic school closures wrought untold damage upon Ontario’s schoolkids. Now, with schools finally reopened, and after two years of being paid in full for doing less work than normal, Ontario’s teachers’ assistants, custodians, administrators and other non-teacher education workers demanded a wage increase of 11.7 percent – per year, for four years, a total of 56 percent. This seemed unreasonable, especially with public finances being a shambles.

Bill 28, the Ford Government’s back-to-work legislation, was intended to protect children previously hurt by the pandemic school closures from additional harm due to strikes. Expecting an inevitable Charter challenge, Ford chose to armour-plate Bill 28 through the notwithstanding clause – which is part of the Charter. (Source of bottom photo: The Canadian Press/Lars Hagberg)

Even more unreasonable would be Ford sitting back and seeing 1.4 million Ontario schoolkids re-victimized by the expected strike and chaos from the associated legal wrangling, court injunctions, wildcat strikes, sympathy strikes, schools opening, schools closing, surly workers and frazzled parents trying to make child-care arrangements on the fly. Interests and social outcomes needed to be weighed and balanced. In this context, back-to-work legislation appears entirely reasonable. And since it was foreseeable – indeed, guaranteed – that such a law would be challenged in court (and struck down, since the right to strike has been “read into” the Charter), armouring the law through “pre-emptive” use of the notwithstanding clause seemed not only prudent but necessary. (On November 7, the union suspended its strike in return for Ford’s government withdrawing Bill 28.)

The above defence of the notwithstanding clause is fine so far as it goes, but still does not get to the heart of the problem with our Charter and our courts’ treatment of it. Ideally, a charter or bill of rights should be written in clear and precise language, delineating a set of narrow yet practical guides in a way that reduces rather than triggers endless disputation.

Something for everyone? Ideally, rights bills or charters should use clear language aimed at minimizing future disputes. But Canada’s Charter, a product of protracted negotiations, included compromises resulting in vague and open-ended clauses inviting creative interpretation by judges. Pictured are Prime Minister Pierre Trudeau and Queen Elizabeth II in April 1982 signing Canada’s constitutional documents in Ottawa.

Philosophically speaking, all language is indeterminate to some degree; thus every charter or bill of rights must leave something to interpretation, which is a proper function of the courts. But Canada’s much-vaunted Charter is especially opaque and seems to have been drafted deliberately to obfuscate and thereby appease ideologues of all political persuasions. The constitutional negotiations that led to our Charter in 1982 were hard-fought, and the resulting document is a product of political compromise, making grand gestures toward political values or ideals – probably because it is easier to get agreement on vague principles than on concrete measures.

Section 1, as mentioned, allows a government or its agent to breach Charter rights provided that the statute or regulation authorizing the breach is a “reasonable limit” on the right which can be “demonstrably justified in a free and democratic society.” Section 7 says that citizens cannot be deprived of life, liberty, or security of person “except in accordance with the principles of fundamental justice.” And s. 15 begins, “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination…”

Each of the key terms in these important clauses – “reasonable,” “demonstrably justified,” “free and democratic,” “fundamental justice,” “equality,” “discrimination” – is an essentially contestable term of political art. Every viable political ideology purports to be reasonable and justified, to advance “true” freedom and “true” equality, to respect democratic norms, and to be consistent with fundamental justice. Yet they all mean something different by these terms. Our Charter is impossible to interpret “objectively” or “neutrally”; it can only be applied by assuming, unconsciously in most cases, a political philosophy that informs the terms being adjudicated.

John Maynard Keynes once said, “Practical men, who think themselves quite exempt from any intellectual influences, are usually the slaves of some defunct economist.” Canadian judges, as a species of such “practical” persons, claim to interpret the Charter “neutrally,” apolitically, but many of their rulings suggest they are the slaves of some defunct political philosopher, such as Karl Marx or John Rawls.

Practical men, who think themselves quite exempt from any intellectual influences, are usually the slaves of some defunct economist.” Famous English economist John Maynard Keynes’ (left) acerbic description can be adapted to Canadian judges (pictured at right is the Supreme Court of Canada as constituted in 2018). While claiming to interpret the Charter neutrally and apolitically, their thinking often appears influenced by defunct political philosophers – usually of the left-wing variety.

Judges in Canada are thrust into the political arena inescapably, by the very nature of our Constitution. Not that they have objected terribly; many have taken on this role with evident gusto. Their Charter decisions are inherently political, and sometimes unabashedly so. This will undeniably be the case should the courts be asked to rule on Ontario’s Keeping Students in Class Act, Bill 28. It is folly (or deceit) to pretend otherwise.

The spectacle of Prime Minister Justin Trudeau and Justice Minister David Lametti slamming Ford’s approach by extolling the “fundamental” Charter right to bargain collectively is risible. Both men stood aside during Quebec’s “pre-emptive” use of the notwithstanding clause to impose its will concerning two issues that seem far less urgent than the situation confronting Ontario’s schoolkids.

The first was Bill 21, passed in 2019, which prohibits public-service workers from wearing religious symbols while fulfilling their civic duties, violating the s. 2 freedom of religion. The second was Bill 96, passed just in May, which further crushes the role of minority languages in Quebec – even denying medical services in English – violating s. 23 minority language rights. Letting these breaches go unchallenged is especially egregious as Quebec’s language and culture laws abridge fundamental rights that are stated plainly in the text of the Charter, in contrast to various fabricated or “read in” rights. One such “read in” right is now at issue in Ontario.

Trudeau and Lametti’s anti-Ford histrionics are based on a fiction: there is no “fundamental right” to strike in the Charter. The Charter is a short document that can be read by anyone in 5-10 minutes; the right to strike is just not in there. It is a fantastical creation of the Supreme Court of Canada in one of its most illogical rulings in living memory: Saskatchewan Federation of Labour v. Saskatchewan (2015). In it the court ruled that the Charter right to freedom of association permits government employees to negotiate as a collective, rather than as individuals, if they choose to be represented in such a way.

Risible: Prime Minister Justin Trudeau (top left) and Justice Minister David Lametti (bottom left) condemn Ford’s “pre-emptive” use of the notwithstanding clause to violate allegedly sacrosanct rights. Yet they have allowed Quebec to get away with doing so repeatedly. Recent examples are Bill 21, forbidding public-service workers from wearing religious symbols in the workplace (top right), and Bill 96, further crippling the use of English in the province (bottom right). Both laws clearly violate the Charter’s plain language, but neither has been challenged by the federal government. (Source of bottom right photo: Patrick Louiseize/Radio-Canada)

But here’s what else freedom of association, properly understood, entails, which the court overlooked or ignored in moving on to the right to strike. First, freedom of association does not allow some employees to force other employees to join the collective bargaining unit, to force them to pay dues to the bargaining agent (the union), to force them to stop working for the employer while negotiations are ongoing, or to accept the terms of employment agreed upon by the bargaining agent they have not individually endorsed. Second, freedom of association also entails that the minute an employment contract expires, the employer is free to hire anyone who is willing to work on the terms set by the employer. That’s because the Charter guarantees “everyone” the right to freedom of association – and that should clearly include the unemployed.

The reason labour laws were originally required in Canada is that in English common law, closed-shop trade unions are illegal. Collective bargaining only became lawful when new statutes began to override the common-law proscription against forced labour-cartel membership. Unions are understood in the English common law tradition to be a conspiracy in restraint of trade, specifically, the trade in labour. This is especially true in the public sector, which is characterized by monopoly provision of services. When the government gives its citizens no viable option but to use public education and health-care services, and the employees in these sectors belong to closed-shop unions, the right to strike in their hands becomes tantamount to extortion.

The Supreme Court of Canada, in the Saskatchewan case noted above, stood the common law logic on its head and made this form of extortion a fundamental Charter right in Canada. In doing so, it ignored the precedent it had itself set in 1987 when it ruled that not only striking but even collective bargaining are not rights protected by the Charter. Surely the same court cannot regard these as both non-rights and rights? The court’s upending of its own jurisprudence is further evidence that our judiciary is implementing its shifting policy preferences rather than interpreting the law once and for all.

Give us 55 percent more or your kids can stay home! The Charter does not include the right to strike, and in 1987 the Supreme Court of Canada confirmed that there is neither a right to strike nor a right to collective bargaining. But in 2015 the top court simply declared that both rights exist. Consequently, public-sector unions can all-but extort money from paralyzed governments. (Source of photo: Oxford Human Rights Hub)

Let’s be clear: the Ford government’s legal nullifying of court-sanctioned extortion by public-sector unions is what Trudeau and his Cabinet are really upset about. Legislatures might owe the courts deference in delineating Charter rights if judges demonstrated modesty and restraint in their engagement with political decisions. But judges have embraced their role as political overseers so enthusiastically and expansively, at such an accelerating rate, and so consistently in one direction – leftist progressivism – that legislative deference has ceased to be proper.

It is the courts and their unchecked activism that are bringing the Charter into disrepute among constitutional lawyers and laypersons. It is long past time that a courageous politician snubbed one of these rulings. In Ford’s hands, the “notwithstanding clause” is doing the work it was designed to do – preventing the dictators in ermine robes from subverting the will of the people.

Grant A. Brown is a retired philosopher and home renovator who currently resides in Edmonton, Alberta.

Source of main image: Shutterstock.

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