CLC Canadian Council Statement on the Government of Ontario’s Decision to Invoke the Notwithstanding Clause

June 15, 2021

The Canadian Labour Congress and its affiliates join the Ontario Federation of Labour in roundly and unanimously condemning the Ford government’s decision to nullify an Ontario court judgment which found key parts of Bill 254 unconstitutional. Doug Ford’s self-serving and dangerous step not only tramples the Charter rights of Ontarians; it will embolden right-wing governments across Canada to similarly silence critics.

In a June 8th decision, Justice Morgan of the Superior Court found that Bill 254’s regulation of third-party advertising during a 12-month pre-election period violated the Charter’s freedom of speech guarantee, and failed the minimal impairment test. Unions argued that the Bill’s one-year regulated period was too long, and indiscriminately limited not just election-related speech, but also expression on a range of important public-policy issues that are unrelated to the coming election.

For decades, the labour movement has strongly and consistently supported limits on election spending and third-party advertising. Everywhere, corporations and the rich have both the motive and the concentrated wealth to sway electorates. This threat was underscored by the 1991 report of the Royal Commission on Electoral Reform and Party Financing and its recommendation that political contributions and third-party election advertising be regulated.

Bill 254, now known as Bill 307, is very different. It is partisan legislation aimed squarely at the Conservative government’s critics, especially the labour movement. At trial, the government failed to justify or even explain why it was doubling the pre-election regulated period, and its own expert witnesses contradicted the government’s case. To use Section 33 of the Charter to override a court decision on a matter of the government’s own electoral self-preservation is a disgraceful conflict of interest and unacceptable to Ontarians.

Even those who don’t oppose the legislation should be appalled at the government’s use of the Notwithstanding Clause to deny constitutional protections to Ontarians.  That clause is called ‘the nuclear option’ for a reason – it is drastic, dangerous and intended for only the most extreme situations.

In 2018, Ford similarly and opportunistically reached for the Notwithstanding Clause to interfere with a Toronto council election campaign then underway. Rather than appeal or accept the decision of the Superior Court, Ford prepared legislation flouting the Charter to serve his own ends.

We reject the notion that the Notwithstanding Clause can be deployed anytime an inconvenient court decision upholding fundamental constitutional rights interferes with the government’s priorities. Mr. Ford, Ontario is a democracy, governed by the rule of law, and subject to the constitution of Canada. You are not king, and Ontario is not a tinpot dictatorship whose laws you can rewrite on a whim, without limit or constraint. Unions will not be silenced, and we will play our part in speaking out for our members. Try as you might you will not muzzle us.

Tags: Bill254