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Ontario Premier Doug Ford speaks to the media after attending the opening of the Kubota's new Canadian corporate headquarters and distribution facility in Pickering, Ont. on Oct. 12.Chris Young/The Canadian Press

There can be no question that parents in Ontario are worried sick about a planned strike by 55,000 education workers represented by the Canadian Union of Public Employees (CUPE). After two years of on-and-off school closures caused by the COVID-19 pandemic, the thought of more interruptions is almost too much to bear.

CUPE says its members will strike on Friday. In the meantime, the Progressive Conservative government of Premier Doug Ford is rushing back-to-work legislation through Queen’s Park that will levy fines of $4,000 a day on strikers.

None of this is falls outside the normal bounds of negotiations between public-sector unions and governments. The threat of a strike countered by the threat of back-to-work legislation is a number both sides have danced to forever.

But what is highly unusual is the Ford government’s plan to invoke the Constitution’s notwithstanding clause in order to prevent CUPE from challenging its back-to-work law somewhere down the road.

Similar successful challenges, such as one in 2016 in which an Ontario Superior Court judge ruled that the Harper government’s back-to-work legislation targeting postal workers in 2011 was unconstitutional, have been based on the Supreme Court of Canada’s interpretation of Section 2 of the Charter of Rights and Freedoms, which guarantees freedom of expression and association.

Ontario plans to suspend those rights by using the notwithstanding clause, which allows legislatures to override a number of Charter rights, including those of Section 2.

David Moscrop: Ontario’s use of the notwithstanding clause for strike-busting is bad business across the board

Put the constitutional override aside for a moment, and the Ford government almost certainly has the public on its side. CUPE wants an 11-per-cent pay increase, or else it threatens to close schools.

But even those unsympathetic to the union should be dismayed by the government’s response. The growing use of the notwithstanding clause, in such a cavalier manner, and to deal with humdrum matters rather than constitutional emergencies, threatens Canada’s fragile constitutional order.

The clause was included in the 1982 Constitution Act, which took Canada from an era of considerable parliamentary supremacy to one of broader rights enforced by courts. If a court ruled in a way that was clearly contrary to the public interest, legislatures would have a time-limited mechanism at their disposal.

The notwithstanding clause was intended as a nuclear option. It was never meant to be used as a tactic in collective bargaining, as the Ford government is doing. Nor was it supposed to become a commonplace addition to legislation – a bit of pre-emptive boilerplate to insulate governments against lawsuits.

But that’s the only way it has ever been used. Its inclusion in Ontario’s back-to-work law marks the third time in four years the Ford government has resorted to it. It also included the clause in a nakedly political 2018 bill to reduce the size of Toronto’s municipal council, and it used it in 2021 to uphold a law that limits the ability of third parties (in Ontario that mostly means unions) to advertise during election years.

In Quebec, the Legault government’s odious Bill 21, which violates the religious freedom of some public employees who want to wear a hijab, a kippah or a turban, was similarly born swaddled in the notwithstanding clause. Parts of the same government’s new law to further limit the use of English in Quebec daily life also survive due to the power of the clause’s constitutional bypass.

The notwithstanding clause was meant to protect the public interest, but it is instead being used to protect the partisan interests of politicians against the scrutiny of courts, and to avoid the responsibility to honour entrenched rights.

It was never intended to void basic freedoms at the whim of majorities who’d prefer not to be confronted by the sight of a hijab on a school teacher, or governments who’d rather not be inconvenienced by workers’ bargaining rights.

The notwithstanding clause is like the Charter’s version of the federal Emergencies Act: The glass is only to be broken in extremis, when no other options are available.

A public inquiry has been convened to determine if the Trudeau government went too far in invoking the Emergencies Act last February; it requires no such investigation to pass judgment on the Ford government’s plan for the notwithstanding clause. It’s clearly inappropriate, right out of the gate.

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