OBA Statement on Province's Use of Notwithstanding Clause

  • November 01, 2022

The government has once again invoked the notwithstanding clause so that their legislation prohibiting a strike and unilaterally imposing contract terms will operate even if it violates the rights protected by sections 2, 7 and 15 of the Charter. These include the rights to free speech, association, and peaceful assembly, the right not to be deprived of life, liberty or security of the person except in accordance with the principles of fundamental justice and equality rights.  

From its inception, there has been debate about whether the notwithstanding clause is legitimate deference to elected decision makers or a compromise that renders the Charter “not worth the paper it is written on”. Ensuring it is the former and not the latter depends on restraint, on respect for the role of the courts, on exhausting other reasonable options for achieving government objectives, and on particular caution where the very core of a right is at issue.  

The government’s stated objective in using the clause is to prevent destabilizing uncertainty for students and families. Creating uncertainty about whether fundamental rights will be protected is also potentially destabilizing. Invoking the notwithstanding clause may seem like a fast and easy solution, but repeated resort to it comes at a cost to society that might not be recognized until it’s too late. Ontarians need to be able to take their rights as a given and count on their consistent protection.