Midweek podcast: The debate over the notwithstanding clause
Ontario Premier Doug Ford is taking a lot of heat this week for his decision to invoke the notwithstanding clause to overrule a judge's decision that would have blocked his plan to cut Toronto's city council by nearly half.
Ford, being the first Ontario premier to ever use the measure, defended his decision this week by saying he has greater legitimacy than an appointed judge because he is democratically elected.
The notwithstanding clause, officially called Section 33 of the Charter of Rights and Freedoms, was created as a compromise between federal and provincial levels of government during debates over the constitution in the early 1980s.
Carissima Mathen, a constitutional law professor at the University of Ottawa told CBC Radio's The House that Ford's justification is concerning.
"I see it as a very disturbing claim that essentially the legislature is supreme over the courts if you have a mandate [to] do things, if you have, for example, a majority mandate," she said.
She explained that, under a constitutional democracy, a judge's decision is not considered invalid just because it disagrees with the legislature.
"You can disagree with that decision, but that's not an illegitimate thing to do, and it's very dangerous to start to suggest that," she said.
Ford has already threatened to use the notwithstanding clause again in the future.
"If they happen to be covered by the notwithstanding clause, we seem to have a signal from the premier that he's ready to invoke it again," Mathen said.
The notwithstanding clause allows the federal government or a provincial legislature to enact legislation that will override several sections of the Charter dealing with fundamental freedoms, legal rights and equality rights but only for a five-year period.
It can override certain categories, such a freedom of assembly and freedom of expression, but not a number of Charter rights, including voting rights, minority language education rights or mobility rights.