Breaking Down Ontario’s Use of the Notwithstanding Clause with Professor Emmett Macfarlane

This past week, the Premier of Ontario, Doug Ford, used the “notwithstanding clause” of the Canadian Charter of Rights and Freedoms to counter a judicial ruling that would have prevented his government from decreasing the size of Toronto City Council. Mr. Ford has also taken steps, through his Party’s agenda, to eliminate the cap-and-trade system that was implemented by the previous government, as well as other policies which are intended to target climate change.

To shed more light on these issues, CDS’ Director of Communications, Jeremiah Pariag, and CDS’ Executive Director, Brian Malczyk spoke with one of the foremost experts on constitutional law, Professor Emmett Macfarlane from the University of Waterloo.

Professor Macfarlane is a political scientist whose research examines the relationships between rights, governance and public policy, with a particular focus on the Supreme Court of Canada’s impact on public policy and political discourse under the Charter of Rights and Freedoms.

He is also the author of Governing from the Bench: The Supreme Court of Canada and the Judicial Role (UBC Press, 2013), and the editor of Constitutional Amendment in Canada (University of Toronto Press, 2016).

Jeremiah: We’ve been following some of your opinions on the Federal Court ruling and Doug Ford’s decision to push back by using the notwithstanding clause. Do you think the situation could have been avoided if the Judge hadn’t used seemingly personal phrasing like the “crickets”, or if Justice Belobaba used stronger legal arguments?


Professor Emmett Macfarlane: I’m not sure that it could have been avoided in quite that sense, because I’m not sure there is any legal reasoning that would reasonably strike down Bill 5 with the fact that the most relevant section of the Charter, here in Canada, simply doesn’t apply to Municipal elections — that’s the section on voting rights. There’s not really any legal argument to me, that’s not a sizable stretch, that would result in the laws and validations. Had the Judge acted in a more restrained manner, then the law would have been upheld, and we wouldn’t necessarily have this controversy with the Notwithstanding clause.


Jeremiah: For sure. Speaking of the judge’s restraint, or lack thereof in terms of his ruling. Do you think his phrasing, and apparent bias, in his ruling in any way legitimizes Ford’s actions?


Professor Emmett Macfarlane: No, and I mean I’m not sure the Judge is guilty of bias in a strict sense. I think the use of the phrase “crickets” in the decision and the like might give people pause and was perhaps unprofessional. So I don’t know if it was biased in that sense, but the law in question is manifestly unfair. Particularly with respect to timing, right. It’s quite an unreasonable move by the government. Even though “unfair” doesn’t mean unconstitutional, I don’t think that means that the Province shouldn’t be up for a healthy dose of criticism on this.


Jeremiah: For sure. A lot of Toronto Councillors have reached out to the Federal Government to intervene in this decision. Specifically, Krystyn Wong-Tam, has been tweeting to Prime Minister Trudeau to solve this issue. When it comes to a situation like this, what powers does the Federal Government have, and can Ford’s actions be undone at this point?


Professor Emmett Macfarlane: In any practical sense, the Federal Government is powerless, here, and any attempts to act within the range of even extreme possibilities would probably cause a constitutional crisis in Canada. So there’s an old power of reservation and disallowance that the Federal government in the early decades of Canada’s existence used with some frequency, and that basically allowed it to disallow Provincial legislation. But that power has not been used since 1943. Most constitutional experts view it as being “spent,” meaning that it is basically dead-letter, and so there’s a constitutional convention around its disuse. And if the Federal government were to step in, and try to use it, we would be thrust into a real constitutional crisis situation rather than the controversy we have now. And really the only alternative some people have suggested is that the Lieutenant-Governor of Ontario simply refuse to give Royal Assent to the legislation, and therefore enact it. But that, too, is an unprecedented situation, and would also be a constitutional crisis. So this is the Ford government using a valid provision of the constitution, it’s controversial, but there’s nothing that the Federal government can really do about it.


Jeremiah: A few people have mentioned using, potentially, section 92 of the constitution to intervene in this. Would there be any use of the Federal Government using section 92 for this?


Professor Emmett Macfarlane: I cannot conceive of one. The authority of the Province to regulate municipal affairs was even recognised by the Judge in this case, and that authority derives directly from the Provinces’ jurisdiction over municipalities in the Constitution. So there aren’t any Federal powers available to do anything legislatively or otherwise.


Jeremiah: People are pretty emboldened by this entire situation, for sure. What is next for people who want to fight this? Is there any approach that people can take on the citizen level moving forward, or is the situation pretty much done at this point?


Professor Emmett Macfarlane: Well, I mean I think political contestation in our political culture in Canada sometimes gets short-thrifted and is often ignored because we rely so heavily on legal and judicial remedies to deal with situations where we feel governments have crossed the line. And so there’s plenty of room, here, for mobilisation. The legislation to enact the notwithstanding clause hasn’t passed yet, there might be members of the conservative caucus who, at least, privately are unsettled by this. And if people are deeply concerned, particularly Torontonians who are having their election, and their city council impacted, there is room to engage in protest, and lobbying, and political action to try to deal with that. Now that might not be successful in the short-term, but if they can actually legitimize criticisms of the government’s actions, and make other Ontarians sympathetic to their cause, well, the Ford government might start thinking about the next election, even though that’s a ways off. So, political mobilisation has its uses, and again it might not be able to stop anything in the short-term, but this is the avenue by which governments receive legitimacy in constitutional democracy.


Jeremiah: I know that a few municipalities and towns have stepped up to support Toronto; Ajax being one of the more prominent ones with Mayor Steven Parish speaking out today. Do you envision other municipalities and jurisdictions of Ontario, stepping up to Ford to support Toronto in this battle?


Professor Emmett Macfarlane: I do. I would expect it. I would expect, at least, the prominent figures of various municipalities to speak out, because they’re implicated in all of this .If this can be done to the largest city in the country, it can certainly be done to any municipality. Now, Toronto just happens to be the one that the Premier seems to hold a grudge against, given his own past experiences, but I think it’s incumbent on municipalities to kind of stand together on this.


Jeremiah: Given the kind of narrow scope of this legislation and it’s focus on Toronto, is there any type of rationale for it being seemingly targeted at the city, or does this seem to be a grudge match between the Premier and the city?


Professor Emmett Macfarlane: I don’t think there is much of a policy rationale, and I, actually, as a policy scholar, I don’t really have strong views about what the correct size of the council is. If this was happening in an inter-election period, and the province just decided it wanted to find efficiencies, or what have you, and reduce the size of city-council, I don’t think I would personally object. The timing is the issue, and the reason it hasn’t seen to be directed at other municipalities is precisely because of the Premier’s own personal experience on Toronto’s city-council. So it’s hard not to conclude that this is anything but a kind of a petty, vengeful action, and I think it warrants criticism as such.


Jeremiah: The timing of it definitely caught members of Toronto City Council off-guard. I’m not surprised that’s been the reaction from it.


Section 33 has been viewed by many to be an attempt to sort of appease both Quebec and other Provinces. Do you think that there is any special significance in Ontario being the Province at this current time to be fighting the Federal Government?


Professor Emmett Macfarlane: I don’t think so, I mean it is unprecedented in Ontario, and only a handful of other jurisdictions have used the notwithstanding clause. But I don’t know that it’s, I mean I think it’s more about the context and this particular case rather than which government happens to be using it. This is an example where the Province hasn’t apparently given much thought at all. They announced their intention to use the notwithstanding clause within hours of the court decision. It is a bit of a sledgehammer constitutional tool that warrants a little bit of deliberation and thought. But I think it’s more the context, and the way this Bill is being used, that warrants criticism. I don’t know that I’m particularly concerned that it happens to be Ontario, or that this is the first time Ontario’s using it. We should be concerned about the context in which it’s being used.


Jeremiah: What would Ontario politics look like if the clause is used more often, and do you think this opens the floodgates for other provinces?


Professor Emmett Macfarlane: Yeah, and I mean I think those are two very different questions. For the first question, it really depends in terms of Ontario’s future and what government is using it. Now, Doug Ford has said he will have no reservations about using it again in the future, and he has this very populist style of governing, and that can be quite worrying for a lot of people. One can imagine all sorts of scenarios where it would be very worrying if it was used frequently. It’s not a constitutional provision that was designed for frequent use. It really is meant as a safeguard against judicial overreach, and it was thought by some Provinces to be an important compromise in our Charter of Rights because, for example, some of them were concerned that we would have, basically, Lochner-era style of judging where the court would be striking down expansion of the welfare state — equivalent to what the U.S. went through with regard to some of the New Deal legislation. It wasn’t thought that this would be used frequently, it might have ended up being used more often than it has been. But the political context is what is concerning, and so any government that announces it intends to use the clause, anytime courts interfere with its legislative agenda, I don’t think they’re taking it seriously enough.


In terms of the second question, we don’t have, thankfully, a lot of politicians who are quite like Doug Ford. I think all of the reasons that Canadian politicians have traditionally been cautious about using the notwithstanding clause are still in effect. So I’m not sure that I see this as opening the floodgates for other Provinces to use it. Saskatchewan used it last year in relation to a school choice bill, but it did so in a very particular context, and I don’t think that opened the floodgates anywhere either. So I think it really is a case-by-case basis, I think most Canadian politicians will remain quite weary of approaching this. It is kind of, it has traditionally been kind of Canada’s third-rail, here.


Jeremiah: One of the arguments that Premier Ford used to legitimize his use of the clause has been that he is an elected official, and the judge is an appointed representative. What do you think about that argument?


Professor Emmett Macfarlane: I mean, I think his rhetoric at the press conference that you’re referring to is very problematic, because he wasn’t just criticizing this one instance of judicial activism, he was dismissing the entire idea that judges and courts have a role to play in our constitutional democracy. Courts have come under criticism in Canada from other politicians. I don’t think anyone holding a serious office, like the Premiership, has ever so broadly and so dismissively attacked the idea of judicial review of rights. It’s kind of lazy constitutional thinking, too, right. Here he is, relying on a valid constitutional provision to overturn courts, while dismissing a whole bunch of other parts of the constitution that give courts a role in articulating what the Charter protects and what it doesn’t. So, that type of rhetoric is, I think, a bit concerning.


Jeremiah: There’s been a lot of people who’ve also been echoing the sentiments of former Prime Minister Brian Mulroney in saying that the Charter is worthless as long as the notwithstanding clause is present. What’s your view on this?


Professor Emmett Macfarlane: I think the only reason the Charter exists as it does is because of the notwithstanding clause, it was a key part of the political compromise to get those 1982 amendments added to the Canadian constitution. I also think that Brian Mulroney’s statement has been proven utterly untrue over time, the Charter has resulted in sweeping changes to certain areas and enhancements of certain rights. The rights for criminally accused have been revolutionary during the ‘80s and ‘90s, equality rights for LGBTQ community particularly, at the very least, the timing that we got same-sex marriage in Canada was certainly influenced by the Charter. So the idea that the existence of the notwithstanding clause undermines the value of the Charter, to me, is a complete non-starter.


Jeremiah: Thank you. So I have a question in terms of the appeal process in general: How can the province both appeal the decision while simultaneously using s33 to waive the Charter rights in question?


Professor Emmett Macfarlane: Part of the reason is that the idea that cases are moot has been kind of eroded in Canadian jurisprudence. The courts are willing to deal with issues, even when they’re not live. So they haven’t felt restricted by the idea that a particular issue isn’t a live case or controversy anymore because, for one thing, it might come up again. I think the other thing that’s important to note, that we haven’t discussed, is that the notwithstanding clause is actually a temporary mechanism. It actually needs to be renewed every five years for it to stay in place. So it actually makes a lot of sense for courts to hear the appeal on this case, because the jurisprudence will remain relevant in the long-term.


Jeremiah: That’s good to know. And have there been any other examples similar to this, where Provinces both appeal the decision while simultaneously using Section 33?


Professor Emmett Macfarlane: I am 90% sure that that is precisely what happened in the Saskatchewan example, from last year, on school choice, yeah.


Jeremiah: Yesterday on your twitter account, you tweeted that “no bedrock conventions…have been violated in this week’s story.” In your mind, what would be a violation?


Professor Emmett Macfarlane: Of a constitutional convention?


Jeremiah: Yes.


Professor Emmett Macfarlane: The example that maybe would be most relevant, here, is if the Federal Government decided to use the power of disallowance to try to stop the Province. I think there’s a convention of disuse around that power, and that’s precisely why it would be a constitutional crisis. Another example might be the formal reserve powers of the Lieutenant-Governor. Again, convention dictates how those actors perform their roles, and if they were to deviate here, that would be a serious problem with how governments normally operates in the Westminster parliamentary tradition.


Jeremiah: Some are pointing to this situation as an argument to moving away from FPTP, what are your thoughts on that?


Professor Emmett Macfarlane: Yeah, I mean, I don’t think the electoral system is the issue, here. In this particular case, advocates for proportional representation will point out, as they always do, that while the Ford government was only elected on the basis of 40% of the population, etc., etc. – Coalition governments can make stupid decisions, too. I just don’t see how the electoral system is particularly relevant to this equation.


Jeremiah: What do you think should constitute an electoral mandate strong enough to wield section 33?


Professor Emmett Macfarlane: Here I would say that, as my friend and colleague Phil Lagassé frequently points out, Canadian governments don’t have mandates. They govern so long as they maintain the confidence of the majority of the  members of the legislature to which they were elected. Any government is legitimate as long as it maintains that confidence convention—in fact that is another bedrock constitutional convention in our system. We don’t talk in terms of mandates, because governments govern during the life of a parliament and that parliament might last two years, it might last four years, and that’s how our system operates. So, the issue of whether the notwithstanding clause can be used by a particular government, in my mind it has nothing to do with their platform provinces. Although they would be justifiably criticized if they broke a campaign promise to, say, not use the notwithstanding clause. But I just don’t think mandates are the frame for understanding the legitimacy of what governments do in Canada.


Jeremiah: And I’m going to shift it over to Brian, now. I believe he has some questions as well.


Brian: Thanks, Jeremiah. Doug Ford has also made it apparent that he is set on also ending environmental programs in the Province. Just shifting gears a little bit, given the lawsuit that has been brought forward by Tesla, do you think that something like Section 33 could be again used to push his agenda forward?


Professor Emmett Macfarlane: No, in fact I think he might be thinking that right now, but there are a lot of ways and contexts where Section 33 is simply unavailable, and that’s because it only applies to certain sections of the Charters of Rights. So if he is guilty of violating administrative procedure, or even if the Province as a whole is found guilty of causing unnecessary financial burdens to companies, and they can successfully sue on that basis, the notwithstanding cause isn’t an issue , it’s simply not available.


Brian: So this would connect to perhaps Greenpeace and Ecojustice suing the Provincial Government over the cancellation of cap and trade. In your opinion, it wouldn’t apply there… if the court ruled against the Provincial Government?


Professor Emmett Macfarlane: It wouldn’t apply there, although for that case I would also say that case faces quite the uphill battle, because they’re effectively trying to argue that the legislature is not free to enact a new law and in our system past legislature cannot bind future legislatures. So even though there’s this environmental protection act in place, that binds the government, it binds the executive, but it does not bind the Ontario legislature. I just don’t see that case getting off the ground.


Brian: Is there any recourse that the Government can take to push forward?


Professor Emmett Macfarlane: Well, no, I think in that case, the government is free to just pass legislation as it sees fit. Unless that legislation violates the federal division of powers, or the Charter of Rights, it’s going to be a valid enactment.


Brian: Given Premier Ford’s focus on municipalities, what credence do you lend to the suburban belt around Toronto influencing his perspective on environmental policy? So there was an argument made earlier in a Globe and Mail op-ed, that effectively said that that when public debt is high that there is a rejection of support for “liberal-elite” values that Toronto holds , including the environment, and other policies. And that’s, for example, in favor of job creation and hard infrastructure.


Professor Emmett Macfarlane: I think there are a few threads there. But the post-2008 recession context is a big piece of this puzzle, and to the extent that there are people within traditional conservative supporters, particularly the middle class who feel like the previous government spent so much energy and so much money subsidizing companies, and engaged on its environmental policy that, in the context of a slow-growth economy, and a fairly slow, long recovery from the 2008 recession, that their needs weren’t being met. And so I think that’s an important component of why Ford was able, and particularly Ford’s brand of populism was able to leverage support and win this election.


Brian: So going towards rural and suburban Ontario, do you think that they feel that using this notwithstanding clause is a threat to democracy?  


Professor Emmett Macfarlane: Possibly not. I mean, it really depends. Voters take a lot of cues from media coverage, so this is going to be seen, and will be seen as a controversial move by the Ford government. But if you’re thinking about people in Ford’s base, this might be a very popular movement, and in Suburban Ontario , and particularly rural Ontario, Toronto is also not a very popular place. It is often seen as kind of the center of the universe, it gets all the attention, and in fact this whole story probably just exacerbates that. And people are probably, a lot of people in the Conservative base who are also, say, rural residents of the Province are probably happy to see Toronto City Council get slashed in half. So they’re happy to see Ford doing everything he can  to make it happen no matter how disruptive it might be.


Brian: So that’s the reaction of the conservative base, then? They don’t think less of him?


Professor Emmett Macfarlane: I don’t think that the conservative base will be at all upset by any of this.


Brian: On a final note, you have a new book, for which you’re editor, Policy Change, Courts, and the Canadian Constitution from the University of Toronto Press. Can you tell us a little bit about this book?


Professor Emmett Macfarlane: It’s a very diverse volume in terms of the policy areas it examines. One of the issues in the academic literature is that, In Canada, anyway, people who study courts and the constitution tend not to be policy scholars first, and there’s a big public policy literature that usually ignores courts. So this volume is really a volume that looks at a whole set of policy issues to show just how influential courts have been in implicating policy. It covers everything from immigration policy, and refugee policy to healthcare, to indigenous policy, and criminal justice, and the police. It’s an 18 chapter set of excellent scholars who have contributed original research based on interviews, and surveys, and the like.


Brian: Fantastic, thank you Professor Macfarlane.

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