The Canadian Civil Liberties Association is calling Bill 28 a “catastrophe” for Canadian rights and freedoms and vows to fight the legislation in court.
The Doug Ford government’s decision to invoke the rarely used notwithstanding clause to impose a contract on education workers in Ontario has raised eyebrows and ire from as far away as the federal government.
Canada’s justice minister and prime minister both condemned the move, and an emergency debate was demanded on Parliament Hill.
But it remains unclear if anyone can — or will — block the province’s new anti-strike legislation.
As unionized education workers across Ontario prepare to strike from Friday “until further notice” over broken contract negotiations, the province is rushing through legislation that will outlaw the strike and impose a contract on them.
The proposed bill — Keeping Students in Class Act — relies on the notwithstanding clause to block challenges from courts and tribunals.
The notwithstanding clause, or Section 33 of the Charter of Rights and Freedoms, gives provincial legislatures or Parliament the ability, through the passage of a law, to override certain portions of the Charter for a five-year term.
In the Ford government’s new legislation, the clause is used to protect the bill from potential legal challenges — explicitly overriding Canadian human rights laws.
“The Act is declared to operate notwithstanding sections 2, 7 and 15 of the Canadian Charter of Rights and Freedoms and the Act will apply despite the Human Rights Code,” the bill’s explanatory note says.
In government talking points obtained by Global News, Ontario’s minister of education is instructed to say that the province does “not take this step lightly.”
“We believe the Act, if passed, is justified and would not violate the Charter or Human Rights Code,” one bullet point reads, despite the wording of the proposed law.
The talking points argue that the province’s hand “has been forced.”
“What (Doug Ford) is doing — I think everybody would agree — is something he can do,” Andrew McDougall, an assistant professor with the University of Toronto Scarborough, told Global News.
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He noted the notwithstanding clause was generally used in “the most extreme situations.”
“A lot of people would, I think, say that this particular situation falls short of that and it’s an inappropriate use of it even though he might technically be allowed to use it.”
Canada’s justice minister is among those who say a standoff with CUPE does not meet the threshold the clause was designed for.
David Lametti indicated on Tuesday the federal government has the option to challenge Ontario in court but has yet to make a decision on next steps.
“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,” Lametti said.
Canadian Prime Minister Justin Trudeau called its use “wrong.”
However, the Ministry of Justice would not explain or elaborate on the potential to intervene — either if it would act or how that might work.
In response to questions from Global News, a spokesperson for the Ministry of Justice condemned Ontario’s use of the clause and said the province “must explain” its actions but did not lay out any steps Ottawa might take.
“I will be waiting with great interest to find out if (the minister) comes up with any particular legal argument in the next couple of days,” McDougall said.
One option that is theoretically available to the government is the disallowance clause of the constitution. It allows the federal government to overrule and throw out a provincial law within two years of its creation.
Carissima Mathen, a professor with the University of Ottawa’s law program, said the clause is not a realistic option for the government.
“It would probably lead to a serious rupture in federal-provincial relations that would be destabilizing for the entire country,” she said.
“It is understandable that people would be looking to unorthodox methods to stem a disturbing trend of treating the Charter of Rights as an inconvenience rather than one of Canada’s defining features. Unfortunately, there is not much that the federal government, acting alone, can do about that.”
The Prime Minister’s Office said Wednesday night that Trudeau and Doug Ford had spoken about Ontario’s use of the notwithstanding clause.
A statement said Trudeau “was clear that the preemptive use of the Canadian Charter of Rights and Freedoms’ notwithstanding clause is wrong and inappropriate.”
Mathen said the federal government could refer the question of limits to the notwithstanding clause to the Supreme Court of Canada for an advisory opinion or even pass its own legislation “that imposes limits on use of the clause at the federal level, and urge provinces to do the same.”
The Canadian Civil Liberties Association — which acknowledges that little can be done to force the Ford government to change course — also indicated Ottawa should consider reopening the constitution to remove the availability of the clause.
In Ottawa on Wednesday, the NDP sought and was denied an emergency debate on events at Queen’s Park.
“There is a clear interest for this parliament to debate the trampling of constitutional rights and the implication it will have for everyone in Ontario and across the country,” stated a letter to the Speaker, signed by NDP MP Matthew Green.
The NDP also introduced an unsuccessful unanimous consent motion Wednesday asking the House of Commons to “reject any intervention aimed at restricting the collective rights of workers to freely negotiate their working conditions.”
Ontario’s proposed bill also sets out to limit the ability of tribunals and arbitrators to step in.
It says that an arbitrator, mediator-arbitrator, arbitration board or any administrative tribunal will not be able to make any decisions around the provisions within the proposed law or determine if it flies in the face of the Human Rights Code.
The same parties will not be able to decide if the actions of the government or its ministers are “constitutional or … in conflict with the Human Rights Code.”
The Ontario Human Rights Commission — the province’s human rights watchdog — told Global News it had “no comments.”
— with files from Global News’ Rachel Gilmore
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