I am old enough to remember the debate around the Repatriation of the Canadian Constitution and the creation of the Charter. True I was a teenager so my awareness was not that great but I did study politics in University from 1984 to 1988 so we got to study the process and the players soon after the fact.
One thing that needs to be remembered is the Clause was demanded by all of the provincial premieres and the Trudeau government agreed because it was the only way to get the deal done. None of the provincial premieres liked the idea of the Charter stopping them from doing what they wanted and the Clause was a way to make that happen. From the time the Charter was created it was inevitable that the Notwithstanding Clause would be used as Doug Ford is using it in Ontario. The only surprise is how long it took.
One other thing to remember about the Clause is the five year sunset provision. That provision means that any law that is maintained by using the Clause is automatically void after those five years, unless the government invokes the Clause again. So, statements that Mr. Ford is destroying the Charter are very overblown. Right now he is being raked over the coals by people who are against these actions. You can see it in his demeanor and in the demeanor of Mr. Lecce that they are feeling the heat. It might occur to them in the coming days and weeks that while they might win the battle against CUPE they may lose the war in 2026. So in 2027 when it is time to invoke the Clause again the Ontario government will probably let the opportunity pass.
There is an opportunity here if people would look past the overblown rhetoric. None of the rights and freedoms in the Charter are absolute. They all have limits. For example, you cannot incite violence against someone or yell "Fire" in a crowding room without facing consequences, despite your right to free expression. The Notwithstanding Clause is no different.
Perhaps some enterprising lawyer could launch a lawsuit claiming the Ontario government is using the Clause in a way not intended by those who drafted the Charter. Right now the Clause is a black box and no one has tried to challenge its use or to test its limits. Any judicial decision could impose such limits. Of course, there would be a risk that the courts would find for the Ontario government but I do not believe so. I think our courts are smart enough and non partisan enough to realize that the Notwithstanding Clause is not a get out of jail free card for politicians who want to deny the rights of Canadians for political ends.
One last thing about what Doug Ford is doing. There have been some suggestions that the Federal government should use the disallowance provision in the 1867 British North American (BNA) Act to stop Mr. Ford. On the surface that seems like a good idea but it is not. First the provision has never been used in the history of Canada. Second, the drafters of the BNA Act intended the Federal government to be the senior level of government in Canada with the ability of override the Provincial governments and it listed a bunch of powers in Sections 91-93 as examples. Then a couple of decades later (before the beginning of the 20th century) the Judicial Committee of the Privy Council (JCPC) decided that those sections listing the different powers were exhaustive lists and not just examples, effectively knocking the Federal government off as the Senior government. From that point forward the use of the disallowance power would have lead to a legal challenge for which the Federal government would have lost. The same is still true today. If we want to stop Doug Ford or someone like him in the future it will be done by the courts and the voters, not the Federal government.
A word on the stupidity of the governments of Alberta and Saskatchewan regarding their "Sovereignty" laws. These laws violate the BNA Act so they are not subject to the Notwithstanding Clause. If these governments try to enforce their new laws the Federal government will take them to court and the provinces will lose. Of course, that is the point of all of this anyway. It is a tried and true tactic of provincial governments to create tension between them and the Federal government because it has been demonstrated in the past that doing so can garner votes. This is the usual kabuki play that we have been seeing between the Federal government and the Provincial governments for over a century. It should be treated as such.
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