Trudeau calls out Ontario's use of notwithstanding clause to prevent education strike

Prime Minister Justin Trudeau has said the Ontario government was wrong to use the notwithstanding clause to “keep kids in school” and legislate a contract with more than 55,000 education workers.

"I know that collective bargaining negotiations are sometimes difficult, but it has to happen. It has to be done in a respectful, thoughtful way at the bargaining table," he told reporters in Ottawa. 

• What is the notwithstanding clause? An explainer on the rarely used provision

"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."

Trudeau’s comments come as Members of Provincial Parliament met Tuesday to fast track the “Keeping Students in Schools Act,” which uses the notwithstanding clause to override the union’s charter rights to strike.

The legislature began its second reading at 5 a.m. and the Progressive Conservatives say they hope to pass the bill on Tuesday.

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On Tuesday, Federal Justice Minister David Lametti said he was looking into how the federal government could challenge the province’s use of the notwithstanding clause, calling the use of it pre-emptively “exceedingly problematic.”

“The use of the notwithstanding clause is very serious. It de facto means that people’s rights are being infringed and it’s being justified using the notwithstanding clause,” he said.

Lametti wouldn’t say what kind of action the federal government would take, adding that a decision will be made when the federal government’s appeal of Quebec’s Bill 21 is complete.

The notwithstanding clause is part of Section 33 of the Charter of Rights and Freedoms and gives provincial governments the ability to override certain portions of the charter for a five-year time period. Prior to the Doug Ford government’s time in power, the clause was used rarely and pulled out only if a controversial court ruling was in place.

Speaking to reporters outside the legislature, Ontario’s opposition parties called the use of it in this case “an abuse.”

“To use it as a way to solve contract negotiations is not its intended use,” Interim Liberal Leader John Fraser said.

NDP MPP Marit Stiles said she is glad to see every “tool in the toolbox” being explored, but would not go into detail about whether she thought the federal government should intervene.

No representatives from the Progressive Conservative Party spoke with reporters following question period. CTV News Toronto has reached out to the Ministry of Education for comment.

Ford has previously invoked the notwithstanding clause to restore parts of the Election Finances Act in 2021 and threatened to use it in 2018 to slash Toronto city council seats during a municipal election.

CAN THE NOTWITHSTANDING CLAUSE BE CHALLENGED?

University of Ottawa Law Professor Martha Jackman told CTV News Toronto that if the federal government were to challenge Ontario’s use of the notwithstanding clause, it would “be difficult.”

“Legally, it would be a long haul,” she said. “It's what the feds are being asked to do in the Quebec secularism litigation is to step in, but honestly, Premier Ford should do the right thing, and he should remove that provision of the bill. It's not necessary.”

Jackman pointed out the Supreme Court has previously said that in order for a provincial government to invoke Section 33 of the Charter, all that is required is to “invoke it.” And unlike in Quebec, in which the government can argue the Charter guarantees gender equality, there isn’t another obvious section of the Charter to fall back on that isn’t impacted by the notwithstanding clause.

The only real way to challenge a decision is to vote the current government out of power, which is why the provision has a five-year time cap.

“I hope that 40 years later, the Supreme Court will revisit that suggestion that there's no other requirement but to invoke it, especially when the rights that are being taken away are those belonging to a disadvantaged group,” Jackman said, adding that Ontarians should be “very concerned” the government is using this provision to prevent specific freedoms such as that of association and peaceful assembly.

The use of the notwithstanding clause as a safety valve is only acceptable, Jackman argues, if it is used in extreme situations.

“Not because it's convenient, or because you don't like the group or because you've got a majority government.”