Section 33: Parliament or the legislature of a province may expressly declare in an Act…that the Act or provision thereof shall operate notwithstanding a provision included in section two or sections seven to 15 of this Charter.
Ontario premier Doug Ford’s promise to invoke the notwithstanding clause – so that he immediately can limit Toronto City Council to 25 councillors, notwithstanding Justice Edward Belobaba’s decision that his current attempt to do this, out of the blue, in the middle of the council’s election campaign, is unconstitutional – is not the first time that section 33 of the Canadian Charter of Rights and Freedoms has become a household phrase across Canada. Remember Aught-Six?
That was the federal election year that pitted Paul Martin’s Liberals against Stephen Harper’s Conservatives. During a leaders’ debate, Paul Martin said that, if re-elected (which he wasn’t), he would repeal the section. The proposal never made it into the Liberal platform, however, probably because of the bizarre hoo-hah that rose against Martin’s promise, but also because of the near impossibility of getting two-thirds of the provinces with at least fifty percent of the country’s population to approve a constitutional amendment … after the amendment had received Parliamentary approval.
As I pointed out in The Lawyers Weekly at the time, even this wasn’t the first time the debate arose in our legal system, and I’m not talking about since the early 1980s, when the Charter was created and PM Pierre Trudeau resisted adding s. 33 to it. I’m talking about since 1601, when Sir George Moore remarked of the powers of Queen Elizabeth I, “Admit we should make the Statute with a non Obstante; yet the Queen may grant a patent with a non Obstante to cross [out] this non Obstante.” Sir George saw even then how arbitrary and self-defeating this notwithstanding business could be. With it, rights and freedoms become a crap shoot – which is why Trudeau Sr. mistrusted it, before giving in as a sop to Quebec and some of its provincial allies on this point, never mind that Quebec never bought into the Charter anyway. (Mind you, little noted in the furor over Ford’s behaviour is this saving grace: the notwithstanding clause must expire no later than five years after its imposition, although it can be re-enacted.)
Of course his mistrust has been justified over the years, but only rarely, and probably no more than now, in Ontario, where the section has been invoked because the premier is trying to replant the Ford nation flag in Toronto. Bizarrely, he doesn’t seem to comprehend that becoming premier of Ontario is more than compensation for his losing the Toronto mayoralty race to John Tory.
Attempting to walk back Trudeau’s surrender, Martin meant to stop this sort of thing %