In the News May 31

Election Law Charter Challenge

Arguments Advanced in Charter Challenge Contesting Use of Notwithstanding Clause

In its Factum in the Charter challenge to the Ford government’s use of the notwithstanding clause to limit freedom of speech in Ontario, the Canadian Civil Liberties Association argues that the Charter challenge is “about the limits of the Legislature’s ability to set the rules of the electoral game — the very rules that govern the process that determines who gets to sit in the Legislature.” It argues that by invoking the notwithstanding clause the Conservatives have made a “bold claim to exclusive jurisdiction to dictate the terms of democratic engagement” and that if allowed to stand “there is little to stop federal or provincial governments from enacting laws to tilt the electoral playing field in their favour.”

The Canadian Civil Liberties Association further states that “the Court is the only institution capable of standing as a bulwark against the subversion of fair elections, and this Court must not hesitate to do so. The integrity of Canadian democracy demands nothing less.”

Arguments presented in the first case are reiterated, emphasizing that in its deliberations the Court must consider “structural conflict of interest” where the “potential for partisan self-dealing poses a fundamental challenge to the democratic system” and the right of citizens to elect and to be elected, in its broader interpretation, must be protected “from such breakdowns in the democratic process.”

The current case argues that the Conservatives cannot use the notwithstanding clause because the right to vote is protected from it and this right has been interpreted by the courts to be “more than the literal right to cast a ballot.”

This has indeed been established as a precedent, with various court rulings declaring that the right to vote includes the right to be informed, among other things.

Summing up previous court rulings, the Canadian Civil Liberties Association states that “a fair and legitimate democratic process includes protecting political discourse, which is essential to [it]. The free flow of a diversity of opinions and viewpoints allows the best policies to be chosen and ensures that the political process is open to all persons. Whenever restrictions on the free flow of information are imposed, the right to vote may be limited by the resulting reduction in information available to voters. The legitimacy of the democratic process thus hinges on the right of each person to meaningfully participate in that process, including by hearing and expressing views on matters of political importance.”

The Canadian Civil Liberties Association argues that the right to elect and to be elected is exempted from being overridden because these rights “must be protected against those who have the capacity, and often the interest, to limit the franchise.”

The courts have previously ruled that “Section 3’s exemption from [the notwithstanding clause] recognizes that legislators have the interest and the ability to implement electoral rules that favour their re-election at the expense of the fairness and legitimacy of the democratic process. […] Where legislators invoke the notwithstanding clause, they are accountable to the electorate in the next election before the override [which can only last for five years] could be extended. Democratic rights … are specifically exempted from override … because the proper functioning of Canadian democratic institutions is an assumption underlying the text of the notwithstanding clause. If democratic rights were subject to legislative override, incumbents could entrench themselves and renew the override indefinitely.”

Ontario Political Forum, posted May 31, 2022.