Front Burner - Why can Canadian premiers suspend your rights?

Episode Date: November 9, 2022

In Canada, if a government really wants to, it can take away many of the rights guaranteed by the Charter of Rights and Freedoms. If a provincial government is willing to risk the potential blowback, it can use Section 33 of the charter, the notwithstanding clause, which allows a government to temporarily override some of its protections and freedoms. And while once quite taboo, the notwithstanding clause is being increasingly, and controversially, used as a legislative tool by provinces like Ontario and Quebec. Last week, Ontario Premier Doug Ford tried to take away education workers' right to strike by invoking the clause. Then, on Monday, the union agreed to return to work after Ford promised to repeal the legislation that had imposed a four-year contract on it. Today on Front Burner, John Michael McGrath, writer and columnist at TVO.org and the co-host of the TVO podcast #Onpoli, explains why the notwithstanding clause exists and why critics argue it's being misused.

In the Dragon's Den, a simple pitch can lead to a life-changing connection. Watch new episodes of Dragon's Den free on CBC Gem. Brought to you in part by National Angel Capital Organization, empowering Canada's entrepreneurs through angel investment and industry connections. This is a CBC Podcast. Hi, I'm Ali Janes, in for Jamie Poisson. In Canada, if a government really wants to, it can take away many of the rights guaranteed to you by Canada's Charter of Rights and Freedoms.

And honestly, it's pretty easy, if that government is willing to risk the blowback. In Ontario, Premier Doug Ford just tried to take away education workers' right to bargain by adding about 30 words to a bill. Those 30 words invoked one extraordinarily powerful tool, the Notwithstanding Clause. It's not something people think about a lot. And really, we were never meant to. Because temporarily removing people's rights wasn't supposed to happen very often.

At least, that was the idea when the charter was first drafted. It is unlikely ever to be used except in non-controversial circumstances. It will be politically very difficult for a government without very good reason to introduce a measure. The notwithstanding clause was just supposed to be used in the most extreme and unusual of circumstances. But we have to think about it now. Because governments are doing this, or trying to, more often. Today, why do we have the notwithstanding clause in the first place?

And why do critics argue it's being overused? John Michael McGrath is a writer and columnist at TVO.org and the co-host of the TVO podcast On Poly. He's with me to sort through this. Hi, John Michael. Thanks so much for being here. Hi, Hallie. Thank you so much for having me. So why don't we start back in 1982. So Prime Minister Pierre Elliott Trudeau and all these provincial premiers

are trying to negotiate this new document, the Charter of Rights and Freedoms. Do you want this charter modified or otherwise, or do you not want a charter? And the people of Canada would decide if they want a charter. And, you know, before we even get into the notwithstanding clause, I just want to ask what might seem like a kind of obvious question, but what is Canada's Charter of Rights and Freedoms? So Canada had a constitutional document from 1867, the British North America Act, and that primarily divided up the powers of the federal

government and the provincial governments. And it spelled out what powers the House of Commons and Senate had and things like that. Fast forward 100 plus years. And starting in the 1960s and 1970s, in particular with Pierre Elliott Trudeau, there was a belief that the Constitution needed to have some kind of enumeration of individual rights to complement the powers that the governments had. I mean, it is kind of wild to me to think how recent this is. Like, I was born in 1984. This charter is two years older than me. I was born in 1981. So yeah, I'm about as old as the charter. And for most of Canadian history, we did not have a constitutional protection for these individual rights, which isn't to say that courts didn't find a way to protect those rights,

but nothing as explicit as the charter. Okay. Okay, so, you know, coming back to these discussions between the Prime Minister and the Premiers, can you just explain to me how, in the midst of those discussions, they decide to come up with this thing called the Notwithstanding Clause? Like, why did they decide that they needed that? The Premiers and previous Prime Ministers

had always lived in a world where Canada didn't have a Charter of Rights and Freedoms. And so this proposal was something new. And there was some skepticism about would this make courts so powerful that they would override elected governments? The Charter was being negotiated by elected politicians. They were not wild about the idea that their decisions could be overruled by unelected judges. The Notwithstanding Clause was inserted

into Canada's constitutional accord before the historic signing in April 1982. The clause was a last-minute concession to the Western premiers, who feared that the powers given to the judiciary by the Charter of Rights and Freedoms were too sweeping. So that was part of it. There was just an intrinsic skepticism.

In 1981, 82, you had just had a pretty tumultuous decade of U.S. Supreme Court decisions. And there was a certain concern that importing a constitutional rights document would also import American-style constitutional politics. And then finally, there was an old idea that still really exists in Great Britain and was inherited from the British Parliament. Parliament, the idea of parliamentary supremacy, related ideas like parliamentary sovereignty, the idea that the ultimate decision maker should be elected governments, the elected legislatures, and that when push comes to shove, it should be the elected officials and not judges and justices who make the most important decisions in our country. Okay. And so, I mean, just to be really clear, what exactly is this clause that they come up with? Like in the plainest language, like what is the notwithstanding clause? So the Charter of Rights has a number of

different sections that lay out and spell out our rights as individual Canadian citizens. And it prohibits the government from doing certain things to abrogate those rights. Section 33, the Notwithstanding Clause, says that notwithstanding everything else in the preceding sections of the charter, some of those sections can still be overridden by legislation for a very time-limited period. So for five years, a provincial legislature can pass a law that will still be in effect and cannot be overturned by a court if they invoke Section 33. Now, they can't use it for every part of the Charter. So as a for example, the Charter guarantees that every Canadian over the age of 18 can vote in provincial and federal elections, and provincial and federal elections can be no more than five years apart. That is a section that you cannot override with the Notwithstanding Clause.

you know, core human rights, things like the right to free speech, the right to freedom of religion, equality rights, personal security of the person in Section 7, those rights can be temporarily, for a five-year period, overridden by the Notwithstanding Clause. So basically, it's like a kind of like a veto button for the provinces to just like be like, actually, like this part of the charter, just we're just going to ignore that for up to five years. For up to five years, some people have described it as a fire extinguisher, right? If something is just getting a little bit wacky in the courts, the elected government or the elected legislatures, I should say, can step in and hit pause and say,

actually, we're going to pass this law that maybe it restores the law that existed prior to a judicial decision. Maybe it gives the parliament or legislature time to come up with a more constitutionally compliant solution. But yes, it lets the elected legislature, they have five years to think of a better idea. I should also mention that the power is also available to the federal parliament. They have never used it. So far in Canadian history, it has only been used by provincial legislatures. So this fire extinguisher, this veto button, I mean, it allows a province or theoretically the federal government to override basic freedoms that are supposed to be guaranteed by the Canadian Charter of Rights and Freedoms. That seems bad, no? Yeah, so it's obviously a very complicated question. We've seen here in Ontario,

the Ford government has introduced legislation invoking the notwithstanding clause three times now. They have only passed that legislation twice. I also want to make it clear that we're prepared to use Section 33 again in the future. The first time was they used it to cut the size of Toronto City Council, but they never ended up passing that legislation because they ended up prevailing in court. He's the judge. I'm the premier. He gets to use his tools. I'll use every single tool to stand up for the people of Ontario. the notwithstanding clause makes a bit of sense because the government had this lower court ruling that was restricting the provincial government in one of the core exercises of its power on the grounds of a charter, right? And it really did fly in the face of precedent and subsequent appeal courts would, in fact, overturn that lower court ruling.

Let's talk about some of the real-life examples here that are more controversial. So, I mean, most recently, you know, you mentioned Ontario, but why don't we talk about the most recent application of the Notwithstanding Clause in Ontario and why that's been so controversial? Right. So the Ontario government introduced Bill 28, which was legislation to force one of the major education unions that was in a strike position to impose a contract on them and prevent them from striking. And it invoked the notwithstanding clause because the Supreme Court has, in the last decade, pretty substantially expanded labor rights as they are read into the charter, and including the right to strike as a charter right. And so the Ontario government believed that this law was never going to meet charter scrutiny. And so they invoked the notwithstanding clause right off the bat. Premier Doug Ford is reaching for the legal tool meant as a last resort,

invoking the notwithstanding clause to avoid a school workers' strike. Because that piece of legislation threatens the rights of every working person in the province of Ontario. Using the notwithstanding clause to suspend workers' rights is wrong. Hey, hey, ho, ho! Order made, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, make, must have gotten an earful from numerous critics, I will say. And they announced that they were willing to repeal Bill 28. Yesterday, we extended an olive branch to QP. We said we'll repeal our legislation, including notwithstanding clause, if they agreed to end their strikes.

I'm so relieved that QP accepted our offer. And it looks like they will do that next week when the House returns. But, you know, very controversial. And from what little public opinion polling we've seen, it does seem like more parents were supporting the education workers than were supporting the government, which is not necessarily what a lot of people, including myself, predicted. So a lot of things going on, but it seems like the government has backed down from the use of the notwithstanding clause in this context, more because of political pressure than because of some kind of constitutional pushback. I mean, how much of the blowback towards the Ontario government in that case had to do with the notwithstanding clause itself and how much, you know, sort of,

I don't know, people feeling like it was the government's fault that their kids weren't in school. Well, you know, I am not a mind reader, certainly not of the general public. But I do think that there has been a taboo against using the notwithstanding clause frivolously and against using it preemptively. It's worth comparing this to the second time the Ford government used the notwithstanding clause, which was to implement campaign finance legislation. Their restrictions on union and corporate election donations had been found unconstitutional by a court. And they introduced a law using the notwithstanding clause to reimpose the restrictions that they wanted. And one of the differences between that case and

this one, that prior case was seemingly far less controversial, and it happened before the election, and voters gave the progressive conservatives a larger majority in the legislature in that election. One of the differences is that the government waited for their defeat in court. And I think for a lot of people, the idea of using the notwithstanding clause on a labor rights issue, particularly against one of the smaller and not as well compensated unions in Ontario's education system, struck a lot of voters the wrong way. I'm going to go. Empowering Canada's entrepreneurs through angel investment and industry connections. do not know their own household income. That's not a typo. 50%. That's because money is confusing. In my new book and podcast, Money for Couples, I help you and your partner create a financial vision together. To listen to this podcast, just search for Money for Couples. Why don't we talk about the other place now that we've seen this clause used more and more,

which is Quebec. at the other place now that we've seen this clause used more and more, which is Quebec. And, you know, it's used the notwithstanding clause recently to get around the charter in two pretty controversial ways. Can you tell me about that? The Legault government in Quebec with Bill 21 has used the notwithstanding clause to try and shield its bill on secular politics. shield its bill on secular politics, this bill that prohibits certain public servants from wearing religious garb or other religious effects in their public work. That is now being heard at the Quebec Court of Appeals. Our lawyers are relying on very creative and innovative legal arguments to invoke sections of the Constitution that are not affected by the notwithstanding clause. One of many arguments that is going on here is basically like,

exactly how far does the notwithstanding clause apply? You can read it relatively narrowly, and there might still be some grounds for the courts to strike down Bill 21. Or if you read it expansively, you know, the notwithstanding clause might shield this kind of law from any real sort of recourse in the courts. Okay. And also in Quebec, there's been this other controversial French language law. Can you tell me just briefly a little bit about that? Right. This is the, again, the Legault government bringing in legislation. Its stated intent is to protect the French language as the official language within the province of Quebec.

language within the province of Quebec, but a number of primarily English speakers, but other minority groups within Quebec are very worried about how it intrudes on their charter rights. Of course, minorities within Quebec and other provinces, they have the right to their own languages as well. And so there's a lot of fear. And of course, this is a part of what we are seeing. And part of the original fear of the Notwithstanding Clause was that majority governments would use the Notwithstanding Clause to erode protections for minorities within their jurisdiction. The problem in cases like Quebec with the Legault government is that the use of the notwithstanding clause in this way turns out to be very popular. Legault, like Doug Ford, was reelected with a very substantial majority. Not only do Quebec voters not seem to oppose this use of the notwithstanding clause,

they seem to broadly support it. And so I don't know that we have a great answer for what to do when the politics of our country don't punish the use of the notwithstanding clause in ways that are sometimes alarming. Now, I know this is complicated by what you just said, that this is popular in Quebec. But in theory, at least, could we just get rid of it? Could we just be like, okay, this whole notwithstanding clause, maybe it was a mistake. Why don't we just change the charter? Let's just move on. Well, you know, it is part of the constitution. And the other thing that we got aside from the charter of rights and the notwithstanding clause was the amending formula in 1982. And that gave us, you know, provinces and the federal government, the power to amend the constitution. In theory, the federal government could try to introduce an amendment to remove the notwithstanding clause. I note that Prime

Minister Trudeau seems to have ruled that out. That's not something he's going to pursue, although he was quite critical of the use of the notwithstanding clause in the case of Ontario. But at the provincial level, it is easier to amend the constitution. You don't have to get seven provinces and 50% of the population to agree to an amendment. If, for example, if the province of Ontario just wanted to remove the notwithstanding clause for its own purposes, they can amend the constitution with just the Ontario legislature and the federal parliament agreeing uh but that seems unlikely given the current makeup of the legislature right well and i guess i mean

you know to be clear it seems like okay so so there is this theoretical situation where this could be amended but then the federal government would have to get you're saying seven provinces on on side seven provinces making up 50% of the country's population. Okay. Which seems hard because like what, what provincial government would want to give up this tool that gives them this veto button to be like, actually this, this like isn't working in my interest. I want to just override this. Like why would they agree to get rid of that? Well, that's it exactly. The same governments that enjoy having this power. And even if, you know, the current premier of, I'm going to just pick a province

randomly like British Columbia, may not want to use this power, may never imagine wanting to use this power. But I think they're all more comfortable having it in their back pocket than they would be to give it up. Right. Okay. But, I mean, as you noted, you know, Trudeau has been really critical of what the Ford government did here. And so, you know, if there's another situation like that where they're feeling like, okay, you know, people's rights are really being overridden here. This isn't okay.

We want to do something about this. My understanding is that they do have this other tool in their back pocket. And I know that this could get really wonky, so we'll try to keep it simple. But what is this special kind of maybe nuclear option tool that they have called disallowance? So the disallowance power is this extraordinary ability that the federal governor general has to basically nullify or disallow any piece of provincial legislation. So it could be used if a province is abusing the notwithstanding clause, but it can also be used for basically almost anything else. But it was used historically when the federal government thought that provinces were either intruding on federal jurisdiction and occasionally when they were seen to be persecuting vulnerable minorities. So that is

relevant to our current discussion. Okay. So in theory, like another tool there, but... But, you know, if the federal government reached for the disallowance power right now, the federal government reached for the disallowance power right now, it would be, I mean, we've talked a lot about nuclear options and it would, I cannot imagine, I mean, you know, you and I are both in news media, it would be fun to cover, but it would be an absolute gong show. I think, you know, you'd have all 10 provincial premiers and three territorial premiers all screaming bloody murder if the federal government tried to dust off the disallowance power. Okay, so bottom line, this is a complicated situation. I mean, you know, this increasing use of the notwithstanding clause,

complicated situation, really messy, hard to get out of. John Michael, thank you so much for having this conversation. It's so interesting. Thank you so much for having me. All right, that's all for today. I'm Allie Janes, in for Demi Poisson, and we, go to cbc.ca slash podcasts.