Lorraine Weinrib is a professor at the University of Toronto, Faculty of Law. She was formerly the deputy director of Constitutional Law and Policy, Ministry of the Attorney General of Ontario.
Politicians who are disappointed when constitutional rights frustrate their plans sometimes turn to the notwithstanding clause, thinking that it allows them to do anything they want. In this, they are mistaken.
The Supreme Court of Canada has held that the notwithstanding clause cannot operate retroactively. This ruling brings the override power in line with the rule of law – a pre-eminent constitutional principle. Persons are entitled to assume the continuity of their fundamental rights without worrying about retroactive government nullification.
Mr. Ford’s legislation reducing the number of Toronto’s wards for the municipal election was recently struck down as an unjustified infringement on freedom of expression. He now proposes to achieve the same reduction through the notwithstanding clause.
The government may think that the override will avoid the prohibited retroactive effect if it changes the election rules before voting day. This is overly simplistic. Democratic governance is also a pre-eminent constitutional principle. In a constitutional democracy, political speech within an election period is part of a sustained process. It is not merely a collection of miscellaneous acts and utterances.
In an authoritarian society, where there is no genuine democratic participation, an election is an event – often elaborately staged – where so-called voters show up on the designated day and a result is declared.
In a constitutional democracy, however, an election is a process. It is not just an event. The integrity of the process is crucial to the political legitimacy of the election. The election process is an intense period of political engagement and deliberation. The electoral framework, including the time frame and the electoral boundaries, provides the structure for the political dialogue between candidates and voters in their specific districts.
When this framework is changed mid-stream, the previous political speech and the resources invested in it may turn out to be misaligned or even worthless. What the candidate has proposed for one ward may not resonate with the new voters in the redrawn ward. Voters in the old ward may find themselves in a ward with a different set of candidates. This means that the precious resources – time, energy, money, volunteer engagement – previously invested in winning their votes turn out, after the fact, to have been squandered.
Candidates must be able to decide whether and where they will run, to formulate their messages, to develop their organizations, and to deploy their limited resources on the basis of a stable audience. To shift that audience in mid-election is to retroactively impair the earlier dialogue between candidates and voters.
These retroactive effects on free expression are incompatible with the Supreme Court’s prohibition against retroactive operation of the override power.
Mr. Ford has said that he is “prepared to use Section 33 again in the future.” If he continues to use it routinely, he will be seeking to release his government from its constitutional obligation to respect a significant range of Charter guarantees. In the light of his impatience in regard to changing the rules for the municipal election – and even to the time it takes to appeal judgments he dislikes – we can expect more retroactive overrides. These actions will, in effect, pre-empt the role of the judiciary designated by the Constitution to be impartial arbiters of the constitutional validity of legislation.
Mr. Ford seemingly does not merely intend to use the override retroactively and routinely. I believe he will also want to override as many rights as possible. His override legislation not only suppresses the right to freedom of expression, which was the basis on which it was recently invalidated. It also suspends our rights as Ontarians to free expression, to a free press, to freedom of association, to religious freedom, to freedom of conscience, to the liberty and security of our persons, to rights in the administration of justice, and to equality under the law. Courageous and dedicated Canadians worked for decades to achieve constitutional amendments that set aside the mode of governance that does not respect and protect these fundamental rights.
Given the strong public support of the Charter that made its adoption possible and continues to this day, it is remarkable that any political leader in Canada holds these views almost four decades on. Nonetheless, the Premier of Ontario’s statements and actions make clear that he believes he has an electoral mandate to impose legislative supremacy.
The Charter expressly guarantees fundamental rights so that we can live our lives within a rights-protecting constitutional democracy dedicated to the rule of law. The Charter repudiates the view that fundamental constitutional rights are gifts that a government can routinely choose to bestow or withhold. We hold these rights by virtue of our inherent equal dignity as persons, not by the grace of our elected representatives.
Thirty years ago, I successfully argued, on behalf of the province of Ontario, before the Supreme Court of Canada, that the notwithstanding clause could not have retrospective effect. I also argued that the clause could not be used in the way the Premier proposes: routinely and with an omnibus override clause that included all the rights subject to the override, not merely those that a court had determined to be infringed.
In these latter submissions, I was not successful. In 1988, the Supreme Court had not yet developed its sophisticated and deeply normative jurisprudence on constitutional principles. In their questions to me, the judges expressed concern that judicial review of the validity of statutes invoking the override would draw them into political waters. Given the recent events in Ontario politics, there is a legitimate role for the judiciary to play in overseeing the constitutionality of the override power.
I hope that these issues can reach the Supreme Court of Canada expeditiously. The Prime Minister has properly declined to use the disallowance power to nullify Mr. Ford’s override legislation. He has one other option worth consideration. He could refer the constitutional questions that arise from Mr. Ford’s intended use of the override – retrospective, routine and without specification of the rights in play - to the Supreme Court of Canada for determination. These issues are of the highest constitutional importance and they stand ripe for determination.