What is the notwithstanding clause and why did Doug Ford just invoke it in Ontario?

Did you know that politicians in power can literally override certain parts of the Canadian Charter of Rights and Freedoms for five years at a time?

A lot of people didn't until this past week, when rumblings started about the possibility of Ontario Premier Doug Ford invoking Section 33 of the Charter — also known as the "notwithstanding clause" — to pass an election spending bill.

It's not like this has happened before or anything: Ford's PC government made history on Monday as the first to actually use the notwithstanding clause to push a bill through the Ontario legistlature.

In this case, it was the controversial Bill 307, dubbed the "Protecting Elections and Defending Democracy Act."

The bill essentially reverses the decision of a judge who, last week, ruled that it was unconstitutional for the PC government to double the amount of time a third party could run pre-election advertisements (from six months to 12 months) while keeping the amount of money they could spend on said ads capped at the same amount ($600,000).

Ontario Attorney General Doug Downey supported the move, saying it was necessary to protect elections from outside influences, while critics argued that the move restricted free speech, and that it was brought in to silence critics of the Ford government.

"Ford’s decision to use the notwithstanding clause is a demonstration of incumbent arrogance, indifference towards free expression, and shows a bizarre and warped sense of priorities... but Ontarians who want to say so are muzzled by this very law." https://t.co/XXGKYKsl51

— Dis (@Radicle110) June 15, 2021

"Ford is desperately trying to cling to power, so he's muzzling people he has hurt," said NDP and Official Opposition leader Andrea Horwath on Friday, panning the recall of legistlature as "an unprecedented power grab."

Nonetheless, after a marathon weekend debate, the bill passed on Monday in a 63-47 vote at Queen's Park. This much was to be expected, as the PC party forms a majority government.

Critics are furious with Ford's use of the clause to, as many allege, restrict public criticism of his administration ahead of next June's provincial election.

"Today, the Ford Conservative government used the notwithstanding clause to ram through Bill 307, formerly Bill 254, anti-democratic legislation that takes aim squarely at critics of Doug Ford and his party," reads a statement issued by the Ontario Federation of Labour Monday night.

"Today's Bill 307 reinstates parts of Bill 254 deemed unconstitutional in an Ontario Superior Court decision released just last week by Justice Morgan. The Ontario Federation of Labour is outraged at Ford's unprecedented use of the notwithstanding clause to trample Ontarians' Charter Rights."

Today Doug Ford is ramming through legislation to muzzle the people he's hurt & save his political skin.

I've just written The Speaker of the House to let him know his violating long-standing house traditions for partisan reasons has had a hand in that. #ONpoli pic.twitter.com/LurFyFwGsU

— Andrea Horwath (@AndreaHorwath) June 14, 2021

But what, exactly, is the notwithstanding clause and why does it exist?

According to the federal government, "the purpose of Section 33 is to require a government that wishes to pass laws that limit Charter rights to say clearly what it is doing and accept the political consequences."

The clause effectively gives Parliament, provincial legislatures and territorial legislatures the power to "pass laws that may limit certain Charter rights — namely fundamental freedoms, legal and equality rights."

Governments may only apply this rule to one particular law in the Charter, and that rule can only be exempt for a maximum of five years.

"To date, provincial or territorial legislatures have rarely used this section," reads the Govermment of Canada's website. "It has never been used by the federal Parliament."

As the Canadian Encyclopedia puts it in an entry on the notwithstanding clause: "It is known colloquially as the 'nuclear option,' because its use is considered extremely severe."

(1/2) For the first time in ON's history, we saw how quickly the Ford govt is willing to act to invoke the Notwithstanding Clause to address their party’s priorities: re-election.

Today I asked the Premier if he will act just as urgently to help small businesses in ON. #onpoli pic.twitter.com/nFR9mNhCTu

— Mike Schreiner (@MikeSchreiner) June 14, 2021

Critics on all sides of the political spectrum are at the very least surprised by Ford's use of this clause to cap election spending by third parties.

"Doug Ford hit the nuclear button today because he's scared, he's a coward, he doesn't want nurses, doctors, teachers, essential workers and personal support workers to hold him to account," said Ontario Liberal leader Stephen Del Duca in response to the move.

The Canadian Civil Liberties Association says it's actually looking at legal options to challenge the bill's passing.

"A day of infamy for Canada's constitution, with Ontario using the notwithstanding clause for the first time, using guillotine motions to silence debate, for a third-party election spending gag law ruled unconstitutional by the courts," wrote the organization in a statement. "We are considering our next legal steps."

As for why such a clause even exists, McGill University dean of law Robert Lecky explains for The Star that "the device is a political compromise from the negotiations leading up to adoption of the charter in the early 1980s."

"It reflects concerns about making the judiciary the sole deciders about the appropriate balance between the rights and freedoms in the charter and other considerations of public policy," says Lecky. "It has been used rarely, though more often than many realize."