CCLA Joins Fight Against Ontario’s Use of the Notwithstanding Clause

The Canadian Civil Liberties Association has been granted permission to intervene in a case in Ontario’s Superior Court that challenges significant restrictions that have been placed on third party election advertising or expression. You may recall that these changes have already been fought, successfully, with the CCLA’s involvement. As a result of that challenge, the law was struck down as unconstitutional and found to be of no force or effect. In response, the Ontario government decided to enact new legislation and invoke the “notwithstanding clause”. This clause, found in s. 33 of the Canadian Charter of Rights and Freedoms, allows the government to pass certain laws even if they infringe rights protected by the Charter. The clause does not apply to section 3 of the Charter, which provides for the rights to vote in and run for elections at the federal and provincial levels.

The new law has been challenged once again by a number of labour groups that are arguing that the third party advertising restrictions infringe on fundamental rights to political participation that are guaranteed under section 3. As a result, the notwithstanding clause is inoperative in this circumstance. CCLA has sought and was granted permission to intervene in this case. We will argue that in giving legislatures the right to override certain Charter rights, the notwithstanding clause also holds them democratically accountable for doing so. It cannot be used to insulate the government from review when it is trying to change the rules of the electoral game in a manner that may make accountability harder to establish. CCLA argument on the motion to intervene is here. We will be filing a factum in the coming weeks and will keep you posted on the case’s progress.