When to Use the Section 33 “Notwithstanding” Override

The controversy over invoking section 33, the Charter’s override, in Ontario appears to have subsided. By imposing a stay on the lower Court ruling of Justice Belobaba, the Ontario Court of Appeal salvaged the Ford government’s effort to interfere with Toronto’s pending municipal election. Reducing the number of Toronto city councillors from 44 to 25, in the midst of a municipal election campaign, the Court of Appeal ruled, was not likely to interfere with the freedom of expression of candidates or of voters. In which case, the lower court ruling could safely be disregarded and provincial law restored to its full force.

That the Ford government was intent on invoking the override in these circumstances is a little more than troubling. Moreover, Premier Ford ‘won’t be shy’ about using the clause again in the future. This turns out to be an opportune moment to consider when it is appropriate to override Charter rights and freedoms. There is another reason to do so now. Canada’s notwithstanding clause serves as a model for other constitutional democracies. As Sujit Choudhry explains, it lies ‘at the heart of the global interest in the Charter.’It is a safe bet that some parts of the world are also watching.

Such an exercise appropriately begins by examining the grounds relied upon for invoking the override in the Efficient Local Government Act. Viewers of Ontario News Now, the Ford government’s video streaming service, will have learned of three rationales. As suggested by the Bill’s title, most every cabinet minister who is interviewed refers to ‘efficiency’ grounds. Shielding the law from further review under the Charter is also justified because it ensures that ‘transit’ will be built and that ‘gridlock’ in city council will be removed. These are vague and not so obvious rationales for a law that reduces, by a little more than half, the number of city councillors. If the efficiency rationale is understood in cost cutting terms – fewer councillors imply fewer salaries – it is also not obvious that reducing the number of councillors will prove to be a less expensive form of government.

It is revealing that at the hearing before Justice Belobaba, who initially ruled the scheme ran afoul of the Charter’s guarantee of freedom of expression, the province abandoned the argument that the bill was a cost saving measure. It appears that the ‘efficiency’ rationale was thought by government lawyers not to have been sufficiently compelling. Justice Belobaba also found that there was no basis, other than anecdotal evidence, to believe that Toronto City Council was dysfunctional and suffering from gridlock. Nor could the province justify the timing: rushing the bill into passage in middle of a municipal election. In an unusually terse paragraph, the justice summed up the province’s response to these questions: ‘Crickets.’

Disquiet is amplified by the fact that the subject was not mentioned during the last provincial election campaign and by the fact that no study or legislative committee report has recommended that the province proceed along this path. Significantly, viewers of Ontario News Now would not have learned from a single Ontario cabinet member why any of these rationales would justify overriding – however contestable the claim – Charter rights and freedoms. When invoking the Charter’s notwithstanding clause, we should expect something more from our democratically elected representatives.

What is expected are sufficiently compelling rationales beyond the empty rhetoric of efficiency or hoped for outcomes – like building transit – that have no obvious connection to the government’s measures. The constitutional override of rights, however contentious, calls upon governments to justify their motivations in clear and compelling ways that are understandable to all. This requires more than saying that judges are not elected. It calls for reasoned explanation. Indeed, the notwithstanding clause is structured precisely to promote public deliberation. 

In order to enact a law ‘notwithstanding’ certain Charter’s rights and freedoms, the legislature must do so by an ‘express declaration’ in an Act of the Legislature. This declaration ‘ceases to have effect’ after a five year period, or an earlier date if set out by law. Such a declaration can be continually re-enacted for periods of no more than five years. The legislature is expected, then, to debate the merits of the clause at its initial introduction and no more than every five-year period thereafter. This design not only enables governments to change minds, there is an expectation that legislatures will justify their declaration on grounds that are publicly available and understandable. 

That something more should be required when invoking section 33 is made evident not only in the clause’s design but in statements made by those who helped draft the clause. There is merit to examining what framers have said about the override even if evidence of original intentions is often unreliable and even if Canadian courts are not much interested in such evidence. We might learn something about Canada’s constitutional tradition and practices (an inherently good thing). We also can assess arguments that, in the current climate, we may find persuasive or not. In asking what sort of uses should be tolerated, we are required to move beyond the simple declarations, issued by Messrs. Chretien, McMurtry and Romanow and Davis, that the override be used only in ‘exceptionally rare circumstances.’ Peter Lougheed’s lecture delivered to a University of Calgary audience in 1991 is instructive for this reason. Premier Lougheed’s talk identifies many of the relevant considerations some of which, it can be safely said, likely were not shared with his fellow framers in the early 1980s. 

Premier Lougheed indicated that the ‘purpose of the override is to provide an opportunity for the responsible and accountable public discussion of rights issues.’ He worried that ‘this might be undermined if legislators are free to use the override without open discussion and deliberation of the specifics of its use.’ This likely was a shared view among the framers of s. 33 due, as I have said, to its design. Lougheed went on to further outline the factors a legislature should consider when invoking the clause. Among them, he declared, was ‘the importance of the right involved, the objective of the stricken legislation,’ together with ‘the availability of other, less intrusive, means of reaching the same policy objective.’ These are the very factors, it turns out, that courts take into account in determining whether a limit on rights and freedoms is justifiable under the Charter. 

By merging legal with political considerations, Premier Lougheed effectively was arguing that citizens and politicians, and not only courts, are capable of reasoning about justifiable limits on Charter rights and freedoms. ‘It should not only be the responsibility of the Courts to determine whether a limit is reasonable or demonstrably justifiable in a free and democratic society,’ he explained. ‘If a legislature wishes to take issue with the Court’s determination, it too should be required to consider whether the limit is one that is justifiable in a free and democratic society.’ 

This is an empowering formulation from a democratic perspective. If it suggests that there will be occasions when use of the override is justified it insists that legislators weigh a number of factors when considering its use. I surmise, and Lougheed’s lecture supports this, that the clause is best left to those instances when the judiciary is so out of step with important socio-economic objectives as to obstruct social change through law. Suppose the Supreme Court declared a provincial public health insurance scheme unconstitutional because it deprives individuals of an ability to purchase private health insurance.[1]In circumstances where the provincial legislature can justify its reasons for invoking the override with reference to compelling public policy rationales, like the preservation of public health care to which all contribute and open to all irrespective of wealth, exempting the law from Charter review makes sense. This is in contrast to rationales like ‘efficiency’ or ‘I am elected and judges are not.’ 

Short of legislative objectives designed to advance important tangible social policy, use of the override should be condemned. Uses solely for the purpose of punishing minority factions on municipal council or radically altering the terms upon which an election is being conducted in mid-stream do not qualify. Such uses amount, instead, to an abuse of the override. By doing so in the case of the Efficient Local Government Act, for reasons having to do with efficiency, transit or gridlock, the Ford government, its ministers, and the Attorney General in particular, will have undermined the purposes for which the clause was included in the Constitution. The Ford government’s invocation of s. 33 did not turn on rational debate, open to all (midnight sittings of the legislature did not help), in terms understandable to all. Instead, it looked like constitutional practice driven by a fit of spite.

[1]This is something the Supreme Court has already done with respect to Quebec’s health insurance scheme that prohibited the private purchase of knee and hip replacement surgery. Rather than invoke s. 33, the Quebec government relaxed the prohibition on private insurance, with respect to a short of list of medical services, and sought to improve waiting times.