The rights and freedoms of all people in Canada are being put at risk by the recent actions of Ontario’s provincial government.
In passing Bill 28, and invoking the notwithstanding clause – a rarely-used Charter override, the Ontario government:
- Put all our rights and freedoms in a precarious and vulnerable state;
- Used the notwithstanding clause for only the second time in Ontario’s history. This government was also the first to use this clause in Ontario, just a few years ago, to try to limit freedom of expression. CCLA is also fighting this.
- Overrode protections in Ontario’s Human Rights Code; and
- Put an end to meaningful contract negotiations instead of going to an appropriate arbitration process.
The notwithstanding clause threatens democracy, freedom, justice, and rights. This clause can be used to override:
- Free speech
- Protest rights
- Religious freedom
- Workers’ rights
- Liberty, the presumption of innocence and habeas corpus rights
- Life and security of the person
If the government can use the clause now without consequence, it won’t hesitate to do so again. If governments can easily override these freedoms, the Charter of Rights and Freedoms is in danger.
The use of the ‘notwithstanding clause’ in Bill 28 means that even though courts have determined that freedom of association includes a right to strike and a right to collective bargaining, the government can effectively ignore these rights and try to avoid any meaningful review by the courts. If the clause is used in other laws, governments could use it to try to trample many other basic rights.
Historically, governments across Canada, with the exception of Quebec, have been very reluctant to use the clause, since in those provinces it was seen as sending a message that a government did not care about rights and freedoms, and could not justify its actions. Remember that the Charter does allow governments to limit rights if they can justify those limits as reasonable.
The reluctance to use the notwithstanding clause has been changing in recent years and we are increasingly seeing it being used in new and troubling ways. In Quebec it has been used in Bill 21, the province’s ban on religious symbols. In Ontario, the government used the clause after a court decided that an election law limiting free speech (in that case, political expression) was an unjustifiable Charter violation. And the Ontario government threatened to use the clause when its decision to change the size of Toronto’s municipal counsel in the middle of a municipal election was challenged (but ultimately didn’t need to when the government was able to defend its law in court). Now, Bill 28 imposes a contract on education support workers such as education assistants, custodians, and administrators who have faced wage caps of 1% for years, and bans strikes, rather than trying to reach an agreement through negotiation, or going for appropriate binding arbitration. Now, the government is not even trying to defend its law in court – it is going straight to the notwithstanding clause to trample rights.