Premier Ford has drawn a great deal of criticism and some support for invoking the seldom-used notwithstanding clause in the Canadian Charter of Rights and Freedoms. This article discusses the issues at play in this controversy in two steps. First, I will discuss the “Protecting Elections and Defending Democracy Act,” which began the chain of events leading to the controversy. Then I will discuss the notwithstanding clause.
Most Canadian jurisdictions have legislation that controls the amount of money that individual candidates, parties, and external third parties can spend during or in the period leading up to an election campaign. The phrase “third parties” refers to individuals or groups who are not affiliated with candidates or political parties, but who want to play a role in the electoral process. These could be corporations, labour unions, interest groups with positions on issues such as abortion or school curriculum, or just any interested individual.
There are limits on the amounts that parties and individual candidates can spend during election campaign. This is usually seen as desirable because it prevents campaigns from becoming free-spending extravaganzas with the impression that elections are for sale to the highest spender. It also limits the extent to which parties or candidates will become beholden to wealthy donors.
Legislation also limits spending by third parties to prevent evasion of the spending limits imposed on parties and candidates. In the United States, there are limits on the amounts that candidates can spend on their campaigns, but there are no limits on what Political Action Committees (PACs) can spend to support or attack candidates. This makes a sham of the spending limits and forces prospective candidates to espouse positions that will attract the greatest amount of financial support.
However, the idea of imposing limits on third-party spending is contentious because it clearly does restrict freedom of expression, which is protected by section two of the Charter. However, the freedoms enumerated in the Charter are not absolute. The very first section of the Charter says that these rights are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
How you feel about the concept of spending limits on third parties comes down to whether you feel that these limits are “demonstrably justified in a free and democratic society.” Ontario has imposed limits on third-party spending in the period leading up to an election campaign for some time. The new legislation passed by the Ford government extended the period defined as pre-election from six months to one year, but it did not increase the spending limit beyond the current $637,200.
This legislation was challenged in the courts by Working Families, a coalition of three teachers’ unions. The Ontario Superior Court decided that the legislation was a restraint on freedom of expression, which was not “justified in a free and democratic society,” and invalidated the relevant sections of the legislation.
This brings us to the notwithstanding clause.
The final section of the Canadian Charter of Rights of Freedoms contains this clause, which allows the federal parliament or a provincial legislature to override a judicial decision by a simple majority vote. In effect, a provincial legislature can say something like: notwithstanding the fact that a court has determined that this legislation violates the Charter of Rights and Freedoms, we still want to go ahead and make this legislation binding.
There has been some controversy about this clause from its inception. It addresses a perennial issue in democratic governance. The Canadian system of government has three branches—executive, legislation, and judicial—and we say that all three are equal. However, there is concern that without a notwithstanding clause, the judicial branch will have the final say on the validity of legislation. The concern about this is that while the judicial branch is a fine institution composed of learned and well-meaning people, they are not elected.
The idea of the notwithstanding clause is that it gives the elected legislature the final say. However, it is structured in such a way as to discourage legislatures from using it except in extraordinary circumstances. If the legislature overrides a decision made by learned judges, this will attract a great deal of public attention and debate about the advisability of this extraordinary action (as it has in this case). An additional restraint is that the legislative override only has effect for five years; it will need to be renewed by a new legislature possibly with a different party in power, and possibly after an election campaign has been fought over the issue.
This is a complex issue because election finance legislation is by its nature a restraint on freedom of expression, but is it a reasonable restraint necessary in a democracy? Who should be the arbiter of this difficult issue? The courts are very good at applying clear legislation to specific cases, but are the courts the best body for balancing conflicting rights, as is the case here?
When the provincial premiers (especially then-Premier Davis of Ontario) insisted on the inclusion of the notwithstanding as a condition of acceptance of the Charter, they felt that it was important to give the elected legislature the last word. That is what has happened in this case. The public will now be able to make its judgment on the actions of the government in the next election. ◆