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Charter - Section 33 'Notwithstanding Clause'

. Working Families Coalition (Canada) Inc. v. Ontario (Attorney General)

In Working Families Coalition (Canada) Inc. v. Ontario (Attorney General) (Ont CA, 2023) the Court of Appeal considers the Charter s.33 'notwithstanding clause', here in the course of a Charter s.3 ['democratic rights'] challenge to Ontario Election Finances Act amendments to third party election finance spending limits. In these quotes the court considered the application the s.33 Charter 'notwithstanding clause' (a Charter political exemption):
(1) The application judge correctly concluded that s. 33 was properly invoked

[48] In adopting PEDDA, the Ontario legislature enacted amendments to the EFA that restated the identical amendments as those rendered inoperative in Working Families 1, with the addition of the following provision in s. 53.1(1) thereof:
Pursuant to subsection 33(1) of the Canadian Charter of Rights and Freedoms, this Act is declared to operate notwithstanding sections 2 and 7 to 15 of the Canadian Charter of Rights and Freedoms.
[49] The application judge rejected the appellants’ claim that s. 33 was not validly invoked, as its formal requirements were met and no other precondition to its invocation existed in law. We agree.

[50] In our view, this conclusion is entailed by the Supreme Court’s decision in Ford v. Quebec (Attorney General), 1988 CanLII 19 (SCC), [1988] 2 S.C.R. 712. Ford holds that s. 33 is subject to a requirement of form only, and that no substantive justification by a legislature for invoking the notwithstanding clause is required: at pp. 740-41.

[51] We explain briefly below why we disagree with the submissions that argue for a different result.

[52] OSSTF argues that s. 33(3), which limits the validity of an invocation of the notwithstanding clause to five years, places an internal limit on the ability of the legislature to invoke s. 33 to shield legislation that undermines electoral fairness. Such an internal limit, according to OSSTF, arises from: (i) the text of s. 33(3), (ii) the structural primacy of s. 3 in the Charter, and (iii) the norms and conventions for reforming election law affirmed by the unwritten principles of democracy and the rule of law.

[53] OSSTF references academic perspectives in support of its points. Professor Robert Leckey and Eric Mendelsohn describe how s. 33 is linked to general elections: Robert Leckey & Eric Mendelsohn, "The Notwithstanding Clause: Legislatures, Courts, and the Electorate” (2022), 72:2 U.T.L.J. 189. Since a declaration under s. 33(1) ceases to have effect no more than five years after it comes into force by the terms of s. 33(3), and the maximum term of legislative bodies is also five years, voters act as a check on the notwithstanding clause’s use. They note that, in this sense, “s. 33(3) hardwires into the Charter the idea that use of the notwithstanding clause requires the electorate's ongoing, or at least episodic, democratic consent”: at p. 199. As a result, OSSTF argues, s. 33 must be interpreted to place an internal limit on the legislature’s ability to reform election law; if fairness of the electoral process is undermined, the electorate would be unable to act as the ultimate check on legislative power. Section 33(3) would be without meaning.

[54] Moreover, Professor Yasmin Dawood notes that “[e]lectoral reform differs from the passage of ordinary legislation because it sets out the very ground rules by which political power is attained” and therefore such changes must be held to a higher standard of legitimacy: Yasmin Dawood, “The Process of Electoral Reform in Canada: Democratic and Constitutional Constraints” (2016), 76 S.C.L.R. (2d) 353, at p. 359. Legitimacy in electoral reform is derived from visibly following the political norms of neutrality, consultation, and deliberation. OSSTF contends that the unwritten constitutional principles of democracy and the rule of law embrace these concepts.

[55] These statements do not justify a conclusion that s. 33 was not validly invoked. Section 33(1) expressly exempts s. 3 of the Charter from the ambit of the notwithstanding clause. Section 3’s guarantee of rights is in full force and applicable to the legislation even though it contains the notwithstanding clause. Section 3 is either violated by the legislation or it is not. The scope and importance of the s. 3 rights cannot serve to restrict the operation of the notwithstanding clause regarding other rights to which the Charter says it does pertain.

[56] OSSTF further argues that the Supreme Court’s decision in Ford is no longer an answer to the concerns it raises in light of the evolution of Charter jurisprudence since Ford was decided in 1988. We note, however, that Ford has not been overruled or specifically doubted by any subsequent Supreme Court decision. The core principles governing the interpretation and application of s. 33 in Ford must guide our review of s. 33 in this case. The notwithstanding clause was expressly and clearly invoked. The formal (and only) requirement for its invocation was complied with. The invocation will expire after five years, and the electorate will be able to consider the government’s use of the clause when it votes. And, as s. 3’s application to the legislation is unaffected by the invocation of the notwithstanding clause, the fact that it was validly invoked still leaves full room for s. 3 to operate.

[57] For these reasons, we would reject the argument that it was not open to Ontario to enact PEDDA with the notwithstanding clause, or that the manner or form of that enactment was improper.

[58] Before leaving the s. 33 issue, we note the submission of the intervener Centre for Free Expression reiterating the relationship between s. 33 and s. 3. The “sunset clause” in s. 33(3), which provides for the expiry of an invocation of the notwithstanding clause after five years, ensures any government that relies on this clause must face the electorate, protected by robust voting rights under s. 3, before it can be renewed. This symbiotic relationship between s. 33 and s. 3 militates for a broad and robust interpretation of voting rights under s. 3 to ensure s. 33’s core principle of democratic accountability.


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Last modified: 11-03-23
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