Sheema Khan is the author of Of Hockey and Hijab: Reflections of a Canadian Muslim Woman.
Ontario Premier Doug Ford, a.k.a. “Captain Canada,” has been front and centre defending our nation against Donald Trump’s nefarious musings on trade and annexation. Mr. Ford has captured the national mood: we aren’t for sale and we aren’t pushovers.
But while Mr. Trump’s threats have been effective in keeping the spotlight on Mr. Ford during the Ontario election campaign, they have overshadowed some crucial issues. One distinctly Canadian issue that should be front and centre of the Ontario election is the notwithstanding clause, and in particular, its pre-emptive use.
That’s the part of the Charter of Rights and Freedoms that allows for the suspension of basic human rights for five years by a federal or provincial government, as matter of policy. These rights include freedom of conscience, religion, thought, belief, opinion and expression, as well as freedom of the press, peaceful assembly and freedom of association.
The clause is back in the news since the Supreme Court of Canada agreed to hear a challenge to Quebec’s Bill 21, which prevents certain public servants from wearing religious symbols. It violates freedom of religion and expression. However, the Quebec government pre-emptively invoked the notwithstanding clause to suspend these freedoms.
Those opposed to Bill 21 argue that it disproportionately causes hardship for Muslim women – that the bill discriminates on the basis of sex. The Charter includes Section 28, which states that “notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.” Section 28 was included in the Charter after intense lobbying by women’s groups to makes sure that the notwithstanding clause could not be used to override gender equality. Opponents of Bill 21 argue that since it violates Section 28 (which can’t be overridden), it is unconstitutional.
The Quebec Court of Appeal disagreed in a ruling a year ago, using legal Cirque du Soleil techniques to explain that even if a law discriminates on the basis of sex, it is still legal if shielded by the notwithstanding clause.
If that weren’t bad enough, its pre-emptive use introduces a sinister authoritarian element. Invoking the clause was supposed to happen this way: a government tables a law that violates fundamental rights, which is challenged up until, say, it gets to the Supreme Court, which would strike it down. The government would then use the clause to pass the law anyways. During the process, the public learns how the law tramples on basic human rights, and can press the government to change course. Democracy in action.
Now, governments are invoking the clause when tabling a law (as with Bill 21). Such pre-emptive use signals that a government knows the law is unconstitutional. Pre-emption also prevents judicial scrutiny, meaning that courts cannot even comment on the violation of basic freedoms that the clause overrides. The public is left in the dark. Those subject to the law can’t even argue that it violates their fundamental rights. Imagine if you were in this situation. The term “Kafkaesque” does not do justice to this injustice.
It wasn’t supposed to be this way. The clause was introduced as a compromise between federal and provincial powers, and as a balance between elected representatives and unelected judges. The initial thought was that it would be rarely used. For decades, that was the case. However, in the past eight years, the clause has been invoked or threatened 12 times.
Constitutional clauses that grant considerable powers can become destabilizing over time. Down south, the rule of law is being threatened by the rule of the presidential pardon. Here, we are morphing into the “True North, Strong and Free – Notwithstanding.”
We can reverse the trend through sustained public engagement. We must demand that our elected officials refrain from using the notwithstanding clause – and if they do use it, to not to do so pre-emptively. We must ensure that laws with the potential to harm basic freedoms are fully challenged in court in the light of day so that the public is fully aware.
We can also make it an election issue. As premier, Mr. Ford has threatened to use or has used the clause four times: in 2018, to reduce the size of Toronto’s municipal council; in 2021, to restrict third-party spending before an election; in 2022, to prevent education workers from negotiating or striking; and in 2024, to clear homeless encampments. If he truly cares about fairness for all Ontarians, make him pledge not to use this threat again. Other provincial and federal leaders should also be challenged on their views on the clause.
During this period of intense patriotism, let’s define who we are: a generous, centrist people who believe in fairness. Especially when it comes to our basic freedoms.