Ontario Premier Doug Ford invoked Section 33 of the Charter of Rights and Freedoms to overturn a judge’s decision to disallow his legislation that would reduce the number of Toronto City councillors from 47 to 25. Sean Fine explains the controversial “notwithstanding” clause and lists its uses to date.

Getting Started

Appropriate Subject Area(s):

History, social studies, current events

Key Question to Explore:

  • What are the origins and intent of the “notwithstanding” clause as found in the Charter of Rights and Freedoms?

New Terminology:

Notwithstanding clause, Charter of Rights and Freedoms, retrospective, dysfunctionality, pique, ethnicity

Materials Needed:

Globe article, Internet

Study and Discussion Activity

Introduction to lesson and task:

In mid-September 2018 an Ontario Superior Court judge struck down legislation passed by Ontario’s newly-elected Conservative Government, led by Premier Doug Ford. The legislation was intended to reduce Toronto’s city council from 47 councillors to 25; however, the timing was problematic, as municipal elections are scheduled for October 22nd, which was the principle objection cited by the judge. In response to the ruling, Premier Ford announced that he would invoke Section 33 of the Charter of Rights and Freedoms, which allows provinces to overrule judicial decisions based on the charter.

Although a subsequent Appeal Court decision means that Mr. Ford does not, at least temporarily, need to pursue this course of action, its ramifications could ripple through the whole country, as his challenge can be interpreted as being disrespectful of the Charter itself, possibly encouraging other provinces to use the clause more often. Students can benefit from a lesson and short essay assignment designed to inform them about this unusual clause in the Charter, and on a further claim by Mr. Ford in which he argued that judges should not have a right to overrule a duly elected government.

Action (lesson plan and task):

Engage students in a brief discussion about provincial/municipal jurisdictions, and on the events in Ontario. These questions/prompts can help focus the session:

  • The provincial government (in your province) announces that it has passed legislation that would dissolve our local (city/town/village) council and everyone, including the major will be let go. Could this happen? (It would be unusual, but it could. All municipal, third-level, governments in Canada are the “creatures” of their province, which can exert full authority over them)
  • Okay, say this happens and your mayor and council challenge the province’s ruling in court, and the judge rules that the province’s actions contravene the Charter of Rights and Freedoms. In response, the province evokes Section 33 of the Charter of Rights and Freedoms, allowing it to overrule the judge and proceed with its legislation. Could this happen? (It can—and did, in Ontario’s case. The “notwithstanding clause” in Section 33 allows provinces to overrule judicial rulings)
  • What kinds of rights are guaranteed in the Charter of Rights and Freedoms? Go to this link: Scan the document for a few minutes. Which rights caught your eye? (answers will vary)
  • Why do we appoint, rather than elect, judges in Canada? Shouldn’t the elected representatives have more authority than the courts? (The separation of powers—between government and the judiciary—is designed to ensure that judges remain loyal to, and focused solely on, the law. A society that is governed by the rule of law holds its elected representatives as subject to the law, regardless of their popularity or political power. The system was designed so that governments cannot decide to remove or trample any of our fundamental rights and freedoms.)

Describe, briefly—using the first paragraph of the introduction, above, if you like, the case of Premier Ford and Toronto City Council.

Announce an assignment, as follows:

Using the article provided and the link to the Charter of Rights and Freedoms, students are to write a brief essay that addresses the following questions and tasks:

Read the article by Sean Fine.

  • Describe in simple terms:
    • what Mr. Ford’s legislation was intended to accomplish;
    • why the judge overruled the legislation;
    • how Mr. Ford intends to use the “notwithstanding” clause to overrule the judge.
  • Using this link: read Section 33 of the Charter, and describe its purpose.
  • According to Mr. Fine, why did some premiers insist on including this clause when the Charter was created in 1982?
  • Which provinces have used Section 33 to date and for what purpose in each case?
  • Given Mr. Ford’s intended use of Section 33, do you think it would be possible for your provincial government to override your Charter right, for example, to be free from discrimination based on your gender or ethnicity? Give reasons.
  • As mentioned in Mr. Fine’s article, Mr. Ford served as a Toronto city councillor during the time that his brother, Rob Ford, was mayor. The brothers had complained that they could not push through their agenda because it was so difficult for council to come to agreement on issues. Do you feel that Mr. Ford could be motivated, in part, by his frustrations during that period? Would this be a reasonable basis for his planned legislation, in your opinion? Give reasons for your answer.
  • Finally, what do you think about the “notwithstanding” clause? Should provinces be allowed to override your Charter rights? Provide reasons for your response.

Consolidation of Learning:

  • Students discuss their essays in a later class.
Success and Additional Learning

Success Criteria:

  • Students can explain, in simple terms, the notwithstanding clause in the Charter of Rights and Freedoms, and explain why we appoint, rather than elect, judges.

Confirming Activity:

  • When it is reported in the media, ask students to note how the legislation in Ontario proceeded, and whether Mr. Ford was successful in reducing Toronto City Council to 25 councillors.