September 10, 2018 2:53 pm
Updated: September 11, 2018 10:42 am

Ontario Premier Doug Ford plans to invoke notwithstanding clause. Here’s what you need to know

WATCH ABOVE: Ford says Ontario invoking notwithstanding clause, appealing Bill 5 court decision

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Ontario Progressive Conservative Premier Doug Ford says he plans to invoke the notwithstanding clause of the Charter of Rights and Freedoms after a judge struck down the contentious Bill 5 that would cut the size of Toronto city council nearly in half.

“I believe the judge’s decision is deeply concerning and the result is unacceptable to the people of Ontario,” Ford told reporters Monday.

The premier said he will recall the legislature this week to reintroduce the bill.

“Our first order of business will be to reintroduce the Better Local Government Act, and with it invoke Section 33 of the Constitution,” Ford said.

WATCH: Ford says the province is ‘not trampling on anyone’s rights’ with Bill 5


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Ford’s announcement comes just hours after Ontario Superior Court Justice Edward Belobaba ruled that the province “clearly crossed a line” when it introduced legislation cutting the number of wards to 25 from 47 in the middle of a municipal election and “substantially interfered with the municipal candidates’ freedom of expression.”

“It appears that Bill 5 was hurriedly enacted to take effect in the middle of the city’s election without much thought at all, more out of pique than principle,” Belobaba wrote.

“As things now stand — and until a constitutionally valid provincial law says otherwise — the city has 47 wards.”

WATCH: John Tory reacts to decision on Bill 5

Ford says his government will also be appealing the judge’s decision.

The stunning announcements Monday leave the election – scheduled for Oct. 22 – in a state of uncertainty as city clerks prepare for an election with either 47 or 25 candidates.

Here is what you need to know about the notwithstanding clause.

What is it?

The Queen signs Canada’s constitutional proclamation in Ottawa on April 17, 1982 as Prime Minister Pierre Trudeau looks on.

THE CANADIAN PRESS/Ron Poling

Under Section 33 of the Charter of Rights and Freedoms, the notwithstanding clause gives provincial legislatures or the federal government the ability to supersede certain portions of the Charter for a five-year term.

“It permits a government to say a law that can operate notwithstanding certain provisions in the charter,” said Carissima Mathen, a professor of constitutional law at the University of Ottawa.

READ MORE: Toronto city council votes to file legal challenge on provincial law cutting number of wards

Mathen says it’s important to note that Section 33 only applies to certain constitutional rights and not the entire Charter, but it can apply to section 2(b) of the Charter of Rights and Freedoms which is the provision that Belobaba relied on.

“By invoking the notwithstanding clause, the Ford government would be saying ‘the law shall be treated as though Section 2 of the charter does not exist,” Mathen said. “You can’t launch any challenges on the basis that it violates Section 2.”

Mathen said the Ford government could say it applies to even more sections of the Charter, even invoking them all.

“He might say this law operates notwithstanding Section 2 and 7 through 15,” she said. “If you do that, it means you treat the law as if those constitutional rights don’t exist, they are off the table.”

WATCH: Ontario Premier Ford to override judge, vows to cut size of Toronto city council

Why was Section 33 added?

In the early 1980s, as charter negotiations ramped up between the provinces and then-prime minister Pierre Trudeau, some provincial governments, namely Alberta and Saskatchewan, were concerned it would affect their ability to pass laws.

“It was added quite late in the process,” Mathen said. “The provinces were concerned that putting in a charter would really affect their powers.”

Provinces also wanted a mechanism that would give them an out if there is a disagreement with a court decision.

How often has it been used?

The Opposition wants to know why Saskatchewan Premier Brad Wall has once again used a private email server to do government business after saying he would stop.

THE CANADIAN PRESS/Jennifer Graham

The notwithstanding clause is an often discussed but rarely used section of the Charter.

It has never been invoked by the federal government or in Ontario since the Charter was passed in 1982.

Mathen said one of its first major uses was in Quebec when the provincial government invoked the clause in every new law immediately after the passage of the Charter. Quebec used it again in 1988 to protect residents and businesses using French-only signs.

READ MORE: Sask. man who helped draft notwithstanding clause believes province is using it prematurely

Saskatchewan used the clause in 1986 to protect back-to-work legislation and in 2017 former premier Brad Wall promised to use the clause to override a court order mandating that the provincial government stop paying for non-Catholics to go to Catholic school.

In 2000, the Alberta government infamously tried to use the clause to limit marriage to a man and a woman. That failed after the Supreme Court ruled that the definition of marriage was the exclusive domain of Parliament.

The Yukon was the first Canadian jurisdiction to use section 33. It was part of the territory’s Land Planning and Development Act, which, although assented to, was never proclaimed into force.

How quickly could Ford invoke Section 33?

As the Progressive Conservatives currently have a majority government, Bill 5 could be reinstated with the notwithstanding clause invoked fairly quickly.

“He’s got a majority. We can pretty much take that as it’s going to be done,” Mathen said.

Ford said he will recall MPs this week to reintroduce Bill 5 in an effort to have it pass before the election.

“My direction to our house leader and whip is to do what it takes to ensure that this law — which has already been passed once — is reintroduced, voted on and passed again on the quickest possible timetable,” Ford said.

WATCH: Horwath slams Ford’s decision to invoke notwithstanding clause

Ford, a former city councillor, abruptly announced the bill in late July and did not discuss it during the last election or the throne speech. He has argued it would improve decision-making on the council with savings of $25 million over four years.

Ontario NDP leader Andrea Horwath called Ford’s move undemocratic and a waste of public money and government resources.

“Doug Ford is literally suspending the Charter of Rights for Ontario’s people in order to plough ahead with his revenge plot against his political enemies at Toronto City Hall,” Horwath told reporters. “He trampled on people’s Charter Rights with Bill 5 that is a fact.”

Toronto mayoral candidate Jennifer Keesmaat condemned Ford’s decision calling it a “disgrace.”

“It is completely unacceptable to suspend the Canadian Charter of Rights and Freedoms in pursuit of old political grudges,” Keesmaat said in a statement “And that is what this is about. Premier Ford did not campaign on this issue. He has no democratic mandate to do this. And it is a disgrace to suspend the Charter on this or any other issue.”

WATCH: Jennifer Keesmaat says Doug Ford’s suspension of Charter of Rights is ‘completely unacceptable’

— With files from Dave Giles

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