What we know and don't know about Ford's planned use of the notwithstanding clause

Posted
September 12, 2018
Article Source
Toronto Star

Toronto's municipal elections have been thrown into chaos once again after a judge ruled Monday that Ontario Premier Doug Ford's plan to cut the size of city council nearly in half was unconstitutional -- and then Ford overruled him.

He did so by announcing his plans to use the "notwithstanding" clause of Canada's Charter of Rights and Freedoms. The clause allows the provinces or Ottawa to ignore fundamental charter rights and pass laws that trump them.

We know how Ford plans to do it and why he wants to do it, but a slew of questions still lingers about Ontario's first-ever use of the clause.

As of now, here's what we know (and what we don't) about Ford's use of the notwithstanding clause.

Can he just do this?

Yes. The clause was specifically designedto let provincial or federal governments overrule charter rights that conflict with their agendas.

It was introduced in 1981 as a compromise to satisfy provinces, namely Saskatchewan and Alberta, whose premiers feared the charter could lead to judicial overreach.

So what's next?

Ford told reporters Monday afternoon he'll introduce a new Bill 5 that contains the notwithstanding clause in the legislature on Wednesday.

From there it will follow the normal route of a bill passing into law. Considering the PCs have a 76-seat majority, it should pass easily.

But it needs to pass by Oct. 22, as the clause cannot be applied retroactively, said Carissima Mathen, a professor of law at the University of Ottawa.

Read more: What we know and don't know about Ford's planned use of the notwithstanding clause