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 – which, hilariously, Ford says he has done in the name of democracy. (Right: cutting Toronto city council almost in half, without consulting or even warning the voters here, in the midst of our municipal election, is “democratic.”) But Martin was hoist on his own petard, giving us a preview of Ford v. Belobaba, insofar as the Conservatives gleefully pointed at him, mocking, “See! Just like we told ya. Undemocratic! He wants to take away the people’s power to rule through legislatures, and let judges run the country!”
Mind you, Ford betrayed his motives, and displayed his lack of acumen for the job as the province’s chief lawmaker, by claiming that, while he was elected by the people, Belobaba J. had been appointed by Dalton McGuinty, the former Liberal premier. Apparently Ford is so impressed with his new powers that he believes he can run Toronto City Council (and flip the bird at Tory), but also appoint Superior Court justices. The latter are, in fact, appointed by the prime minister. Justice Belobaba was appointed by (irony alert) Paul Martin.
(Full disclosure: Justice Belobaba taught at Osgoode Hall when I was a law student, and was at Gowlings when I was briefly a barrister there. In my limited dealings with him, I have found him amiable and not apparently given to revolution by judicial coup or fiat.)
Oh, and yes, that strange word “notwithstanding” is (as I said in the Weekly)
a lousy translation of the Latin phrase non obstante, common in our law from the 15th century and used regularly, until recently [when we “democratically” dumbed everything down by eradicating all Latin from juristic usage], in Canada’s legal discourse. Non obstante first appeared on the rolls of the English Parliament in 1444, regarding ‘notwithstanding clauses” in grants of patent. The full original catch phrase, now usually reduced to “notwithstanding anything in this Act” or “notwithstanding” certain provisions, was non obstante aliquo statuto in contrarium – literally, “other statutes being no barrier to” what this particular statute says. In the context of section 33, if statute X were said to operate non obstante Charter sections two, etc., statute X would exist in a universe separate from the Charter. The Charter would “be no barrier” to the validity of statute X.
So Martin’s proposal, notwithstanding its flaws (that inhere to the flaws of any notwithstanding clause, by amendment or otherwise), would have stopped Ford in his tracks, maintaining the balance of power. Ford could have awaited the outcome of an appeal of the Belobaba decision, or introduced pretty well the same legislation limiting Toronto councillors in time for the next election. Apparently government lawyers didn’t even argue that the legislation could be saved by Charter section one – that even if it were unconstitutional, it was demonstrably justified as a reasonable limit “prescribed by law … in a free and democratic society.”
As I concluded in 2006, Martin’s repeal proposal “was a risky and strange thing, but it was not an ignoble thing. And this got lost in the translation.” Funny how short our memories are these days, and not just because of that other impulsive authoritarian south of the border.
**If you’d like to be notified of each new posting, let me know via the “contact” page and I’ll put you on my e-mail list.**