Ontario Premier Ford Says Ottawa’s Challenge of Notwithstanding Clause Amounts to ‘Overreach’

Ontario Premier Doug Ford criticized the federal government for filing a motion with the Supreme Court around limiting the use of the notwithstanding clause, calling it a “disaster” and saying it will likely be blocked by the provinces.

“This is the worst decision Prime Minister [Mark] Carney has ever done, and it will be an absolute disaster, and I don’t believe it’s going to go through. It just takes Quebec and Ontario to block it,” Ford said during a press conference in Vaughan on Sept. 25.

Federal Justice Minister Sean Fraser recently filed a factum with the Supreme Court outlining the government’s position on “constitutional issues raised” by the use of Section 33 of the Charter, also known as the notwithstanding clause. That clause allows the federal and provincial governments to override some provisions of the Charter by enacting a law, and also prevents judicial review of the legislation for five years.

Ottawa said the Supreme Court should set limits on when the clause can be invoked, as its repeated usage amounts to denying the Charter’s “very existence.” The clause is being examined by the court as part of a landmark case on Quebec’s secularism law, known as Bill 21, which bans teachers, judges, police officers, and jail guards from wearing religious symbols while working.

Ford said Ottawa’s decision is “overreach” and said the people of the provinces should be supreme, and “not judges ruling on stuff that shouldn’t even be in front of the courts.” He also said Fraser should focus his efforts on bail reform and mandatory sentencing.

“There’s not one person I’ve talked to that has said, ‘we want to give the judges—politically appointed judges—more authority,” Ford said.

Fraser has said the Liberal government will introduce legislation this fall to reform Canada’s criminal justice system, including amendments to the Criminal Code imposing stricter bail conditions and sentencing, particularly for offences related to organized crime, car theft, home invasion, and human trafficking.

Ford added that he does not believe an amendment to the notwithstanding clause will go through, because it requires two-thirds of the premiers and 50 percent of Canada’s population to be accepted. “So why is [Carney] wasting his time? He should get back to work and focus on what things, what areas really, really matter,” Ford said.

Carney said during Question Period on Sept. 24 that the Charter of Rights and Freedoms protects all Canadians, and it is the job of the federal government to defend it.

In addition to Quebec signalling opposition to Ottawa’s challenge of the repeated usage of the notwithstanding clause, Alberta Premier Danielle Smith has said her province is “extremely disappointed that the Federal Government would risk national unity” by attacking the usage of the notwithstanding clause.

Saskatchewan Premier Scott Moe also said he opposes Ottawa’s attempt to limit the clause’s usage, which would be a “significant infringement on the autonomy of provinces and their elected legislatures.”