Ontario Liberals set to table legislation preventing 'frivolous' use of notwithstanding clause

The Ontario Liberals are tabling legislation Tuesday that will restrict the use of the notwithstanding clause in the province in an effort to prevent its “frivolous” use.

The bill is being tabled a day after the province rescinded the “Keeping Students in Class Act,” which used the notwithstanding clause to override the Charter of Rights and Freedoms to impose a contract on education support workers and make it illegal to strike.

The legislation was rescinded on Monday as part of a deal with workers to get them back to the bargaining table.

The use of the notwithstanding clause by the Doug Ford government was widely condemned by opposition parties, unions and the Prime Minister of Canada.

Speaking to reporters on Tuesday morning, Liberal MPP Lucille Collard said she would be introducing legislation that would further limit how the government can use Section 33 of the Charter.

“I find it very concerning that this government is treating the notwithstanding clause as just another tool the government can use to achieve its policy goals,” she said.

“Yesterday, it was the right to collective bargaining of education workers. So what's next? Which other fundamental rights should we fear of losing?”

The legislation would prevent the government from pre-emptively using the notwithstanding clause before a court has ruled that a piece of legislation does infringe on Charter rights. It would also restrict its use to “urgent and critical situations of a temporary nature that seriously endanger the lives, health or safety of Ontarians.”

Collard said the government will also have to table a report in the legislature explaining why the use of the notwithstanding clause is being used and why it is justified.

When asked for an example of when it would be appropriate to use the notwithstanding clause, Collard said it could be used in an “extreme situation” such as a time of war where the government may need to limit the movement of people.

“I think the example that the government used in terms of collective agreement for the education worker doesn't fit in that category at all.”

The private members bill has little chance of passing considering the Progressive Conservatives hold a majority in the Legislature.

Steven Chaplin, a part-time professor of constitutional law at the University of Ottawa, told CTV News Toronto that in the unlikely event the legislation does pass, it would not have the impact the Liberals hope for.

"You cannot amend the constitution with mere legislation," he said. "So to amend (or) completely remove the operation of section 33 or to completely limit the operation of section 33, you will need a constitutional amendment."

"Secondly, there is a principle in constitutional law that one legislature cannot bind a future legislature, so in other words, when you make a law that is designed to affect legislative capacity, then the law itself could easily just be repealed."

Chaplin said the Legislature is ultimately governed by the constitution, which would trump any legislation imposed on a sitting government.

Regardless, Collard said she believes the bill is worth tabling given the “abuse” of the notwithstanding clause.

The clause has been used by Ford in 2021 to respite parts of the Election Finances Act. The premier also threatened to use it in 2018 to slash the size of Toronto’s city council during a municipal election.

Justin Trudeau previously said the Ontario government was wrong to use the notwithstanding clause as a bargaining tool.

"The suspension of people's rights is something that you should only do in the most exceptional circumstances, and I really hope that all politicians call out the overuse of the notwithstanding clause to suspend people's rights and freedoms,” he said in early November.

Collard said she did have conversations with the federal government prior to tabling this legislation.

During question period on Monday, the premier was asked to promise not to use the notwithstanding clause in a labour dispute.

Ford did not answer the question, choosing instead to allow Education Minister Stephen Lecce to respond on his behalf.

Lecce said the threat of a strike by education workers will have a significant impact on the health of children in Ontario.

“I would urge the members opposite to consider the very real impacts of union-driven strikes on children. They are real,” he said.

“They have learning loss and mental and physical health impacts that we can quantify. These are not abstractions; these are the children of our province. They have an obligation to them.”

Ford has previously said that he believes the two-day strike held by education workers was “much more dangerous” than overriding the Charter rights of those same workers.

He has also called the notwithstanding clause a “tool” and said workers gave them “no option” but to use it.