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Doug Ford’s use of notwithstanding clause exposes dangerous loophole in Constitution

When weary negotiators reached an 11th-hour deal to put a get-out-of-jail-free card in the Constitution back in 1981, it struck many Canadians as harmless enough. Though some legal scholars objected and Prime Minister Pierre Trudeau resisted, it looked at first like a clever Canadian compromise. Yes, Canada would get a new Charter of Rights and Freedoms in its patriated Constitution, fulfilling Mr. Trudeau’s dream of securing the country’s unity by guaranteeing the rights of all. And, yes, judges would get new power to enforce those rights. But if a premier or prime minister really, really objected to a court’s ruling, well, they could always override it.

Its defenders argued that the “notwithstanding clause” was a last resort, to be used only when governments believed a matter was so grave that a law they passed must stand even if a court found it unconstitutional. For the nearly four decades of its existence, that is very much how it has been used: cautiously and sparingly. Most governments most of the time held off from invoking it. The biggest two – the Ontario government and the federal government – never used it. The clause was a sheathed dagger hidden under a cloak.

Then along came a man named Doug Ford. The Premier’s move to invoke the clause after an Ontario judge overruled a law cutting the size of Toronto city council has shaken us out of our slumber. It forces us to reassess the pleasant notion that the clause is merely a harmless escape valve. We have awakened to the disquieting realization that the Charter we cherish is not nearly as strong as we think.

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Any premier, any prime minister, can unsheath the dagger in a flash and cut the life out of our most sacred rights, just like that. Those rights are not inalienable, inviolable or any of the other fine, lawyerly words you might choose. They are provisional, revocable, subject to change at the whim of our rulers. All Mr. Ford has to do to override a judge is pass a new law invoking the notwithstanding clause. Easy as pie. There is very little, legally, that anyone can do about it. It’s in the Constitution.

The convention that the clause would be used only as a last resort is just that: a convention. It is based on an unspoken understanding that we all respect the Charter and that overriding its safeguards is a big, big deal. Mr. Ford has no time for such a cozy consensus. He wants what he wants and he is determined to get it. As he explained this week, he will use any tool in his tool kit to get his precious law passed. The universal notwithstanding tool lies conveniently at hand.

The immediate consequences are not all that serious. Pushing through a law reducing the number of city councillors to 25 from 47 is hardly the end of democracy as we know it, though Mr. Ford has hinted he might use the clause again. But his challenge to judicial oversight gives us a chilling hint of what might happen if someone worse than Mr. Ford were to come along. Our Constitution, we now understand, contains a dangerous flaw, a loophole big enough for a truck. Heaven knows who might drive through it one day.

Constitutions should be built for worst cases. They are made to last generations, even centuries. They exist to protect us against the most unscrupulous of rulers in the darkest of times.

For that reason, constitution makers like to avoid escape hatches and get-out-of-jail cards. Sooner or later, someone is bound to exploit them. The best constitutions are unequivocal. The First Amendment of the U.S. Constitution doesn’t say that people can say or write what they wish as long as it isn’t really offensive. It says that “Congress shall make no law … abridging the freedom of speech, or of the press.” End of story. One of the few consolations in the wild saga of U.S. President Donald Trump is that, as erratic and impulsive as he may be, he is hemmed in by the old oaken walls of the constitution. When judges ruled he was out of line to bar travel from several mainly Muslim countries, he couldn’t simply exercise an override. The United States has no such thing. He had to appeal the rulings and go back and redraft the law.

We have no such protection here, not as long as the notwithstanding clause stands. We should thank Mr. Ford for alerting us to the danger. Now what do we do about it?

In an ideal world, Prime Minister Justin Trudeau would call the premiers together again to amend the Constitution and get rid of the notwithstanding clause. Though we should never say never, that is not likely to happen now. Memories of Meech Lake, Charlottetown and all that are too fresh.

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But at the very least, Canadians should let out a mighty roar about what Mr. Ford is doing.

This isn’t just a feud between a premier and a city. It’s a foreshadowing. It threatens the rights of Canadians everywhere. They must make it clear to governments, present and future, that casually trampling over the judicial guardians of those rights is unacceptable. If they really care about their Charter, they should rise up and say as one: Never again.

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