'I do think it is extraordinary': Law community expresses concern over notwithstanding clause threat

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Hundreds of professionals within the law community from across the province, including those in Windsor-Essex and Chatham-Kent, have expressed concern with the premier’s threat of using the notwithstanding clause to back new legislation promising a crackdown on encampments.

On Thursday, Doug Ford responded in an open letter to a dozen mayors, including those wearing the chains of office in Windsor and Chatham-Kent – he was preparing legislation to address their concerns about the growing issue and is ready to invoke the override clause in the Charter of Rights and Freedoms to do so.

“I do think it is extraordinary,” said Richard Moon, a law professor at the University of Windsor, in an interview with CTV News. “The idea that you would have a group of public officials write to the premier and say, 'We want this kind of legislative action, and we want you to insulate it from constitutional review, review on the grounds of fundamental rights being breached.' That's pretty unprecedented and I think it's troubling.”

The notwithstanding clause, Section 33 in the Charter, allows Parliament or a provincial legislature to temporarily override certain other sections — like those protecting freedom of religion and freedom of life, liberty, and security of the person.

According to Moon, the clause was meant to be used sparingly while still allowing governments-of-the-day to enact legislation where courts may be believed to have erred, or a reasonable disagreement exists on the limit of a right.

“[Section 33] certainly does have the potential of watering down the strength of the Charter,” said Moon. “But there was an assumption or understanding that invoking Section 33, if a government were to do that, it would be like waving a red flag and saying, ‘Look, we're doing something that might actually involve interfering with fundamental rights.’ And that the public would be concerned about that.”

A letter to the premier on Monday, signed by 450 members of the legal community in Ontario, including 10 in Windsor and two in Chatham-Kent, urged the government not to bandy about the notwithstanding clause.

After the premier confirmed his position, Martha Jackman, a professor emerita in the Faculty of Law at the University of Ottawa and a backer of the legal community’s letter, called the decision a “deeply disappointing” approach to the crisis.

“Using the notwithstanding clause would be unnecessary if the premier is genuinely confident that his government’s measures to deal with encampments are ‘entirely aligned with the Charter’ as he confidently states in his letter to the mayors,” said Jackman, in an email to CTV News. “Using the notwithstanding clause to strip vulnerable people of their fundamental rights is an abuse of the Charter and undermines our constitutional democracy.”

The initial Oct. 31st letter to the premier from a dozen Ontario mayors requested the use of the notwithstanding clause, if necessary, to circumvent a Jan. 2023 Ontario Superior Court ruling that requires appropriate accommodations to be made available before enforcing encampment evictions.

“One of the reasons for having a constitutional charter of rights is that we know that sometimes governments don't take adequate account of the rights and interests of minority groups within the larger community,” said Moon. “Another view of Section 33 is, it means that judges who, of course, are not elected don't necessarily have the final say on the question of whether legislation breaches the rights in the Charter.”

Eroding rights?

Doug Ford is the first Ontario premier to use the notwithstanding clause, when his government invoked the measure to restore changes to election finance laws a judge had declared unconstitutional.

Since, he has suggested using the measure to protect other pieces of legislation.

Moon isn’t ready to declare a constitutional crisis, but said the potential to erode the integrity of the Charter may be closer to reality than theoretical.

“I don't know. It's a really hard thing to judge,” said Moon. “The threat to use Section 33, I don't think necessarily has a significant impact, although it may make members of the public feel less confident that the Charter provides them with meaningful protection.”

Other leaders, including federal Conservative Leader Pierre Poilievre and Quebec Premier François Legault have hinted or suggested at triggering the measure as well for different ends.

“We can say that the Charter is being undermined or eroded significantly by this but, if it is the case, and the Ford government has indicated its willingness to do this, the Poilievre government, if that's what we get at the federal level, has also indicated it may be willing to use Section 33 more liberally, perhaps even more routinely. If that occurs, then yes, I think there will be legitimate concerns about the strength [and] the value of the Charter of Rights,” said Moon.

For some in the legal community, current political trends may require course correction and a larger conversation around the guardrails for Charter-protected rights.

“I think we should probably have a larger conversation about Section 33 and whether there are things we might do to tweak it so that it is not so easy to invoke,” said Moon.

Jackman agrees.

“The use or threatened use of the notwithstanding clause by Premier Ford, other provincial premiers and, for the first time at the federal level, Conservative Leader Pierre Poilievre, underscore the urgent need for the Supreme Court of Canada to establish clear guardrails on the use of the notwithstanding clause, especially against vulnerable minorities,” said Jackman.

The promised Ontario legislation targeting encampments, and the complex web of issues tied to them, is expected to be tabled next week.