The Ontario government is invoking the notwithstanding clause in back-to-work legislation intended to impose an agreement on education support workers and stave off a strike. Though this would impinge on their right to labour action, it is being done to protect students’ right to access education. Which is completely legitimate: we expect our governments to take our rights seriously, but we also expect them to balance competing rights.
But what is a right? Answering that question (comprehensively) has occupied political and legal philosophers for centuries. One helpful definition is that a “right” is an expectation that arises in society that governs our relationships with each other and with the state. Rights can be entitlements, or they can govern how people are treated.
A common misunderstanding is that our “rights” come from the charter. We knew what a right was well before 1982, and we certainly had rights before then. Notably, the “right of labour action” was never included in the charter. Instead, that right was read into Section 2(d) of the charter by the Supreme Court in the Saskatchewan Federation of Labour case in 2015.
There are other rights that are not specifically enumerated in the charter but are commonly understood, by both citizens and governments, to exist, such as the “right to health care” and the “right of access to education.”
The Ontario government certainly understands that access to education is a right and is acting according to that expectation. If the Supreme Court can “read in” a right to labour action, it is not without merit that the Ontario government believes it has a mandate to defend the right of access to education. The use of the notwithstanding clause is, accordingly, an appropriate way for it to protect that right.
Some argue that our constitutional framework is designed to foster a “dialogue” between legislatures and the courts. Proponents of this theory often point to Section 1 of the charter, which states that a legislature can limit the rights within the charter, so long as those limits are “reasonable” and “demonstrably justified” by law. Ordinarily, legislation that may infringe on rights relies on this section instead of the notwithstanding clause.
This begs the question: who decides what is “reasonable” and “demonstrably justified”? Within the context of Section 1, it is the courts. The courts are, therefore, the final decision-maker on whether a legislature has done something “justifiable.”
This “dialogue,” as currently constructed, however, is rather one-sided — it’s akin to a supervisor micromanaging an employee to ensure that his or her work is up to the supervisor’s standards. This would suffice in a juristocracy, but not in a democracy.
The notwithstanding clause, in contrast, allows Parliament or a provincial legislature to supersede aspects of the charter in such a way that judicial review is bypassed and instead subject to democratic override. In contrast with the “dialogue” theory, the use of the notwithstanding clause cements the principles of parliamentary supremacy and democratic oversight.
The use of the notwithstanding clause is not without controversy, though. Canadians understandably feel skittish about governments infringing on their rights. Accordingly, it is worth highlighting two features of the notwithstanding clause: first, it cannot be used in such a way that it impacts Canadians’ right to vote at least once every five years; and second, any time the notwithstanding clause is used, it expires and must be re-implemented within five years.
The function of this feature of the charter is to ensure that Canadians have the opportunity to choose representatives that would have the power to renew the notwithstanding clause or let it expire. At the end of the day, our governments are accountable to voters. If the government gets the balance of rights wrong, it may be voted out. No such remedy exists with the courts.
In the case of the Ontario government, it is important to understand that by using the notwithstanding clause, it is attempting to balance competing rights.
Ontario Education minister Stephen Lecce, for example, stated that, “The point of this government legislation is designed to keep kids in school … we’re going to do it with all the tools at our disposal to avert a strike and a disruption and any type of problems that could arise in the coming weeks or months.”
Implicit in this statement is an expression of a right: children have a right to in-person learning after years of disruptions due to the COVID-19 pandemic, and the government is justified in infringing the charter right to labour action, in order to further the right to an education.
Ontario’s decision to use the notwithstanding clause in this way is a legitimate and (what outwardly appears to be) constitutional use of that clause to express the will of the electorate.
This sort of rights-balancing by the legislature in Ontario is similar to the rights-balancing done by Quebec with Bill 21. There, the government claimed that limiting the religious expression of those employed by the state was done to properly give effect to Quebec’s interpretation of the principle of the separation of church and state.
This is unlikely to be the last time legislatures use the notwithstanding clause to re-frame competing rights. Over 40 years of charter jurisprudence, we have seen governments reluctant to legislate on matters touching on the rights enshrined in the charter, but in a democracy, there must be a role for legislatures, the gestalt expression of the will of the people, in determining how rights are balanced.
On occasion, the democratically elected legislature may decide that the situation is so severe that it justifies using an extraordinary tool to expedite the execution of that will. Whether or not it made a good decision will be determined at the ballot box, not in the courts, and there’s nothing inherently wrong with that unless you are of the view that judges are the only legitimate determinants of what is or is not a right.
I could be persuaded by that view, but I do have, perhaps naive, faith in democracy.
Karamveer Lalh is an Edmonton-based lawyer.
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