The Ford Government’s invocation of section 33 of the Canadian Charter of Rights and Freedoms in Bill 28 prohibiting education workers from striking and imposing a contract on them has once again raised cries of “this isn’t what the notwithstanding clause is for”. Really? What exactly did everyone expect to happen? Here I explain why I think section.33 has always been a ticking time bomb — and that there’s nothing that can be done about it except through strength of public opinion.
THE LABOUR SITUATION AND RELEVANT PROVISIONS OF BILL 28
Some background first on the immediate situation. CUPE, representing 55,000 education workers in the province (including early childhood educators, administrative and maintenance staff and teaching assistants who help students with special needs, among others, depending on the school board) and the Ontario provincial government have made proposals for a new contract with a gaping canyon between them:
Among other things, CUPE wants a yearly wage increase of $3.25/hour (11.7 per cent), early childhood educators in every kindergarten class, five additional paid days before the start of the school year, 30 minutes of paid daily prep time, an increase in overtime pay, and a $100 million investment in new job creation.
The province’s latest offer, proposed at an emergency mediated session on Sunday afternoon, is a four-year deal that includes a 2.5 per cent annual raise for workers who make under $43,000, and a 1.5 per cent yearly wage increase for those who make more. This is up from their initial offer of a two per cent annual increase for workers who make less than $40,000 and a 1.25 per cent raise otherwise. (CTV News)
Some 96% of education workers voted to strike in response to the breakdown in negotiations. In response, the Minister of Education introduced legislation this past Monday prohibiting the strike and imposing contracts. Debate began yesterday morning and the government expects it to pass by Friday. Of course, it will pass, since the government has a majority (although the Minister has announced the government will go back to the table in response to a counteroffer from the union).
Among other provisions of Bill 28, Keeping Students in Class Act, 2022, the most relevant are as follows: new collective agreements “are deemed” to be in operation as of the date Bill 28 receives Royal Assent, expiring August 31, 2026; decision-making bodies are prohibited from affecting compensation under the agreements; back-to-work applies if there is an on-going strike when the Act receives Royal Assent; strikes are prohibited once the new collective agreements are in place, that is, on Royal Assent; penalties are a maximum fine of $4,000 for individuals and otherwise, $500,000, in both cases for each day of contravention of the act. (References to strikes also include references to lockouts, to the extent it matters.)
Most relevant for the purposes of this post, section 13(1) provides, “Pursuant to subsection 33 (1) of the Canadian Charter of Rights and Freedoms, this Act is declared to operate notwithstanding sections 2, 7 and 15 of the Canadian Charter of Rights and Freedoms.” And section 13(2) states, “This Act applies despite the Human Rights Code.” The same applies to regulations under the Act.
Just to be sure, Bill 28 prohibits any body (such as the Ontario Labour Relations Board or an arbitrator) inquiring into or making a decision about the constitutionality (or consistency with the OHRC) of the Act or action taken under the Act, as well as other restrictive provisions covering any way (it would seem) the Act or actions under it could be challenged.
And while an application for judicial review might occur, “no remedy shall be granted in an application for judicial review with respect to any purported infringement referred to in subsection (4)”, which refers to actions brought under section 24(1) of the Charter or or section 52(1) of the Constitution Act, 1982. This applies whether the action is brought before or after the Act is in force. The Act also gives regulations retroactive force.
FOCUS OF THIS POST
There is much to be said about Bill 28 and the government’s response to the threat (or promise) of a strike. However, I’m limiting my comments to Bill 28’s use of the notwithstanding clause, to what I consider to be a realistic assessment of the impact of section 33 and to the federal government’s musings about what it can do. I make four points.
The first is that this government has not forgotten the lesson of the provincial Liberal government’s effort to restrict strikes in 2012. Then the Ontario Superior Court of Justice found the restrictions to contravene the Charter‘s guarantee of freedom of association and concluded they were not justified under section 1 of the Charter.
The second is that the current government has little respect for the Charter and as shown it will resort to section 33 whenever it wants to ensure it gets its way.
The third is that the invocation of the notwithstanding clause is no longer considered sacred territory, to be used only in extraordinary circumstances, and that its power — for governments — is that it can enable them to deny constitutional rights to those whom the drafters of the Charter intended it to protect.
The fourth is that it is inappropriate for the federal government to intervene in this matter, regardless of what tools might be available to it.
In 2012, the Liberal government enacted Bill 115, the Putting Students First Act, which restricted the rights of teachers to strike and removed certain benefits, including sick pay, among other things. It was repealed on January 23, 2013. The Elementary Teachers’ Federation of Ontario launched a challenge under section 2(d) of the Canadian Charter of Rights and Freedoms, freedom of association. In his decision upholding the challenge, Lederer J. observed, “It is now recognized that s. 2(d) of the Charter of Rights and Freedoms protects the fundamental right of employees to a meaningful process of collective bargaining”. (See here, para. 121) He held that the government had not justified Bill 115 under section 1 of the Charter. Three unions and the government reached agreement on damages (see CBC story here), but in June 2017, the ETFO brought an application for a decision on remedy. Judge Lederer ordered aggregate compensation $103,100,000. Indeed, the total amount was more than $212.5 million since the Ontario Superior Court of Justice ruled that it ‘substantially interfered’ with bargaining.” (“Ontario elementary teachers awarded $103M as ‘remedy’ for Liberals’ Bill 115“, Toronto Star)
The Ford government was not going to run the risk of re-creating the Liberals’ experience for itself. Not only has it not waited until a strike has occurred and has proved to be doing harm to the students’ education and the ability of the boards of education to deliver an adequate education, it has forestalled those possibilities. Bill 115 is not back-to-work legislation, but attempts to suppress rights before they can be exercised.
THE FORD GOVERNMENT’S USE OF SECTION 33
Whatever the role the Liberals’ Bill 115 experience played in the government’s thinking, however, its decision to invoke section 33 is at one with two other earlier circumstances under which the government did or was prepared to invoke it. The first came shortly after the Ford government had assumed office and enacted the Better Local Government Act, 2018 to reduce the number of wards in Toronto.
When the Superior Court of Justice held the legislation to be contrary to the Charter, the government sought to re-enact it with the notwithstanding clause included (Bill 31, Efficient Local Government Act, 2018). Bill 31 was not enacted, reaching only second reading. The government successfully sought a stay from the Court of Appeal, which subsequently overturned the trial decision.
In that case, there had been no consultation with the municipal government and the action was taken in the midst of a municipal election. The use of the notwithstanding clause ensured that the government’s action was immune from legal scrutiny. But its introduction created much debate. The Superior Court had already determined Bill 5’s constitutionality. Furthermore, Bill 31 was really the same as Bill 5, thus breaching the rule that the same legislation should not be re-enacted in the same session. (For an explanation, see “Unprecedented Use of S. 33 in Ontario“.)
In the end, it was not necessary to enact Bill 31 and use the notwithstanding clause because of the stay of the Superior Court’s decision on Bill 5. (The Supreme Court of Canada subsequently upheld Bill 5, the Better Local Government Act, 2018: see here.)
On the second occasion, the Ford government had enacted legislation making changes to the rules under the provincial Election Finances Act about third party funding, which the court had found unconstitutional (see CTV News story here and decision in Working Families Ontario v. Ontario). (The change restricted spending to 12 months before an election; previously, the Act identified a period of six months.) A day later, the government re-enacted the legislation with the notwithstanding clause. (A second challenge in the case was based on section 3 of the Charter, which is not subject to section 33; however, it was unsuccessful. [See CTV News Story here and decision in Working Families Coalition (Canada) Inc. v. Ontario].)
THE REALITY OF SECTION 33, INCLUDING THE FEDERAL GOVERNMENT’S ROLE
The inclusion of section 33 in the Charter is the reason there is a Charter. It reflects the compromise between the provinces and federal government that convinced some of the provinces to agree to the Charter. Its language is clear:
33 (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.
(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.
(3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.
(4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1).
(5) Subsection (3) applies in respect of a re-enactment made under subsection (4).
The Supreme Court of Canada has also made it clear that the only redress when section 33 is invoked is a political one. In the early Ford decision, dealing with the use of French in Quebec, the relevant statute included the following provision: “This Act shall operate notwithstanding the provisions of sections 2 and 7 to 15 of the Constitution Act, 1982 (Schedule B of the Canada Act, chapter 11 in the 1982 volume of Acts of Parliament of the United Kingdom).” The Court had to decide “whether a declaration in this form is one that is made in conformity with the override authority conferred by s. 33 of the Canadian Charter of Rights and Freedoms” (Ford, para. 23).
The Court decided this wording satisfied the requirement, stating, “[T]his Court is of the opinion that a s. 33 declaration is sufficiently express if it refers to the number of the section, subsection or paragraph of the Charter which contains the provision or provisions to be overridden.” (Ford, para. 33) It also upheld Quebec’s enacting of omnibus legislation to apply the override to all statutes (Ford, para. 35).
Other issues raised about the exercise of section 33 were met with this: “These are once again essentially submissions concerning permissible legislative policy in the exercise of the override authority rather than what constitutes a sufficiently express declaration of override. As has been stated, there is no warrant in s. 33 for such considerations as a basis of judicial review of a particular exercise of the authority conferred by s. 33.” (Ford, para. 35)
However, it did have something to say about the retrospective impact of section 33: “s. 33(1) admits of two interpretations; one that allows Parliament or a legislature to enact retroactive override provisions, the other that permits prospective derogation only. We conclude that the latter and narrower interpretation is the proper one.” (Ford, para. 36; Irwin Toy)
Accordingly, as a legal matter it is quite easy to invoke section 33: just use the right words. Nevertheless, since 1982, there have been few instances of its invocation and even some of those cases didn’t come to fruition (see “Notwithstanding Clause“, Canadian Encyclopedia for a summary of its use up to 2021).
Optimistically, some advocates have argued that people will be so upset by the use of section 33, at least in certain circumstances, that they will vote the government out of office when they have the chance. And of course, this is exactly how section 33 is supposed to work.
Inclusion of the clause in legislation lasts for five years, the longest a government can constitutionally stay in office before an election. (Because legislatures have now provided for four year terms, voters can pass judgement earlier, if they so choose.) This provides the voters an opportunity to vote against a government employing the clause and the subsequent government to address the unconstitutional aspects of the legislation if appropriate.
If the legislation itself, as opposed to portions of it, would have been or was held to be unconstitutional (section 33 doesn’t prohibit judicial review, but rather makes its impact mute for the operative period), then once the invocation expires, the legislation will be unconstitutional in operation. (I note here that Bill 28 also seeks to prevent a decision-making body from making a decision about unconstitutionality.)
The Ford government’s use of the notwithstanding clause in the case of the Election Finances Act has been strongly criticized, both because it has been used at all and because it had been included in re-enacted legislation following a judicial finding that legislation was unconstitutional. But the Conservatives were elected with a larger majority in the 2022 election than in the 2018 election, after which the government used or was ready to use section 33 twice.
Provinces and Yukon have invoked or went part way in invoking the notwithstanding clause several times since the advent of the Charter. From 1982 until 1985, the Quebec Parti Québécois government always included it in all legislation. Quebec had not signed on to the Constitution Act, 1982 and this was a form of objection rather an intent to actually deny rights. In a sense, though, it served to diminish the seriousness of relying on section 33. Subsequently, it was used to immunize language rights legislation from challenge, but was not renewed when it expired. Again, this was French language rights and although there were criticisms, it seemed very specific to Quebec.
More recently, the use of section 33 by Quebec to immunize the denial of religious equality rights in relation to employment in the public sphere, in furtherance of a secular state, looked quite different to many people, although justified to many Quebeckers. The judge determining the challenge to Bill 21 explicitly criticized the denial of rights and didn’t mince words that he was stymied in doing what he would have otherwise done except for the inclusion of the notwithstanding provision (see my Slaw post here and decision, Hak v. Attorney General of Quebec).
None of the Ontario, Saskatchewan or Quebec premier has lost an election following their use of the notwithstanding clause. Indeed, they have increased majorities. The political remedy relies on the political culture and public perception of the importance of Charter rights and, perhaps more importantly, governments’ arbitrary decisions to override those rights, at least for five years. It may well be that for most voters’, the invocation of section 33 is irrelevant to how they decide to vote.
The Ford government has been faced with strong criticism for its use of section 33 to immunize the right of certain educational workers to strike and bargain collectively. The Globe and Mail‘s editorial board fits this use into the same by governments more generally: “The growing use of the notwithstanding clause, in such a cavalier manner, and to deal with humdrum matters rather than constitutional emergencies, threatens Canada’s fragile constitutional order.” (“Using the notwithstanding clause to negotiate a union contract? That’s like cracking eggs with a jackhammer“, Globe and Mail)
The Prime Minister and federal Ministers of Justice and Labour have criticised it (see Global News story here and CBC news here). Indeed, one columnist has proposed the federal use of the disallowance power in order to protect minority rights (see Andrew Coyne, “What Ottawa should say to the provinces: See your notwithstanding clause, raise you disallowance“, Globe and Mail). Coyne argues the federal government used to have responsibility for equality rights; they should reassume that responsibility.
John Ivison suggests a better route for the federal government would be to take a reference to the Supreme Court of Canada in relation to the use by both Quebec and Ontario and ask the Court to place some parameters around its invocation (“Lametti lights a match under the notwithstanding clause“, National Post).
I should emphasize that I’m not a “Jill-come-lately” to the potential of section 33. To establish my bona fides with respect to concern with section 33, I note the following I wrote in my Slaw post about Quebec’s Bill 21:
In 2000, in an article in the UNB Law Journal (Vol. 49, 169) about section 33, entitled “Section 33 of the Charter: What’s the Problem, Anyway? (Or, Why A Feminist Thinks Section 33 Does Matter)” I said, “Whatever merits it might have, dressed up as a means to represent the will of the people against the follies of unelected courts, recourse to section 33 may actually legitimate the continuation of prejudice.” (p.169) (“Challenging Bill 21: The Decision on Section 33 of the Charter (Among Other Things)“)
Section 33 was the price Pierre Trudeau reluctantly paid for the Canadian Charter of Rights and Freedoms, for an enshrined bill of rights. It was considered worth paying because it would be used rarely and only in extraordinary circumstances to protect provincial/territorial (and, indeed, federal) legislation from the Charter. And the gain would be entrenched rights under the guardianship of the courts.
On the one hand, what those extraordinary circumstances might be, or at least those viewed as “legitimate”, is not clear. But, on the other hand, it was no doubt comforting to think that some aspect of parliamentary supremacy remained. The potential for abuse was always there, but, you know, those in this clique of constitutional framers knew what was intended.
Like prices for just about everything, the price for the Charter has gone up. The original fellows are gone from making decisions and at least some of their replacements, se veral governments along, aren’t really interested in the deal made forty years ago. Now the use of the notwithstanding clause is only one of several threats to the constitutional order.
As for the federal musings, this is not their fight. The provinces and territories, as well as the federal government itself, have the constitutional right to invoke section 33, as long as they abide by the terms of the provision itself and the consequent judicial decisions (best described as “hands off”). Disallowance is almost, but not entirely, a spent force and while if successful (a big “if”), it might remedy one wrong, the intrusion into what is a provincial sphere of jurisdiction under the Constitution Act, 1867 would lead to a constitutional brawl. It is also highly unlikely that the federal government would be prepared to do the same with Quebec’s Bill 21.
Placing parameters around section 33 would require the courts to enmesh themselves in analyses I doubt they want. Much cleaner to treat the words of section 33 as the beginning and end of the matter. Once engaged in a more extensive consideration (okay, you have to wait until a court has found the statute unconstitutional — reenacting legislation to achieve the same result — or you must anticipate the potential of Charter violations and use section 33 ahead of time — resulting in Quebec’s original approach just to be sure). Or more: governments have to meet these criteria before they can use section 33. That’s just not consistent with the framework envisioned in the Charter. While overeager use of the notwithstanding clause may seem an abuse, so would the courts’ second-guessing the justification for its use.
The reality of section 33 is its use matters to the people affected by it and perhaps to those who believe in the rights being trampled. It matters to people who believe strongly in rights in the abstract. In other words, one might say appropriate resort to section 33 is a matter of constitutional ethics.
But it is also a reality that it is a powerful tool in the hands of governments who are willing to treat it as a way to avoid the Charter. And as long as they think they can get away with it (easier with a majority government), they will. There is nothing but public opinion — and voting against a government that abuses section 33’s use — to stop them.