“Notwithstanding” political interests and agendas, human rights matter

The Charter Challenge

Earlier this week, in a case brought by a range of public interest organizations and unions – Working Families, Ontario, the Elementary Teachers’ Federation of Ontario, the Ontario English Catholic Teachers’ Association and the Ontario Secondar School Teachers’ Federation, with an intervention by the Canadian Civil Liberties Association – Ontario Superior Court Justice Ed Morgan struck down amendments Doug Ford’s government had made to the Election Finances Act, imposing spending limits on third-party political advertising in the year leading up to provincial elections in Ontario.

Justice Morgan ruled that the limits violated freedom of expression protection under section 2(b) of the Charter of Rights and could not be shown to be “demonstrably justified in a free and democratic society” under section 1 of the Charter.

The Ford government was not pleased with the outcome.  That happens in Charter litigation, on both sides of a challenge.  The usual response is to pursue an appeal.

The Nuclear Option

Doug Ford has, however, chosen to pursue what many are terming the “nuclear option”, turning to the notorious “notwithstanding clause” in section 33 of the Charter, which allows a government to enact legislation regardless of the possibility it may violate core provisions of the Charter, including section 2(b).

The Ontario legislature has been recalled for an emergency session to rush through this legislation, Bill 307, which is exempted from both the Charter and the province’s Human Rights Code:

                4. The Act is amended by adding the following section:

Application of Charter and Human Rights Code

53.1 (1) Pursuant to subsection 33 (1) of the Canadian Charter of Rights and Freedoms, this Act is declared to operate notwithstanding sections 2 and 7 to 15 of the Canadian Charter of Rights and Freedoms.

Human Rights Code

(2) This Act applies despite the Human Rights Code

The notwithstanding clause has very rarely been used in Canada.  It has never been used federally, most often has been used in Quebec, including very distressingly most recently with Bill 21, the restrictions on various public officials, including teachers, from wearing religious symbols. Although Premier Ford threatened but ultimately did not need to use the notwithstanding clause in 2018 in connection with his decision to reduce the size of Toronto’s City Council, this would be the first time it is used in Ontario.

I of course want to assume that Premier Ford has diligently taken steps to ensure that this alarming resort to the notwithstanding clause is in full compliance with the international human rights obligations that are (need we remind him) binding on his government. But as that evidently is not the case, I thought it might be time for a quick primer.

Derogation and International Human Rights Obligations

International law does indeed recognize that there may be extreme circumstances which justify a government temporarily and narrowly overriding some (not all) of its international human rights obligations.  That is most clearly articulated in article 4 of the International Covenant on Civil and Political Rights, which has been binding on Ontario (and all governments in Canada of course) since 1976 (yes nothing new here, this has been the law for 45 years):

Article 4

(1)  In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.

(2) No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.

(3) Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.

Lots to take note of there, including "extent strictly required" and "exigencies of the situation". Most crucially we will all be interested to see the Premier's analysis as to how this constitutes a "public emergency which threatens the life of the nation". 

Public emergency. 

Threatens the life of the nation.

The expert UN body that oversees states' compliance with the ICCPR, the UN Human Rights Committee (which presently includes a Canadian member, Marcia Kran), has laid out detailed guidance to governments regarding these exceptional powers in article 4 allowing derogation from otherwise binding human rights obligations. Notably, the Committee references such public emergencies as armed conflict, mass demonstrations involving instances of violence, and major industrial accidents.  The Committee goes on to lay out clear limitations on permissible derogations, noting they must be narrowly tailored, and proportionate to the nature of the emergency.

A stretch, to say the least, that there has been the sudden onset of some sort of nation-threatening public emergency here. Has something catastrophic about elections, advertising and the months leading up to a campaign suddenly and unexpectedly emerged such that the "life of" Ontario hangs in the balance?  Would that have anything to do with it now being a year left before the Premier needs to again face the voters of Ontario and he is not looking forward to the critique that awaits him in that election lead-up? 

Limits on freedom of expression in international human rights law

This is not about a public emergency.  This is not the domain of derogation and "notwithstanding".  Rather, this is the ongoing dynamic of assessing what is and is not protected under freedom of expression guarantees.  Here too international human rights norms have much to offer.  Freedom of expression is one of those rights that has been drafted (by governments remember, not by activists) with inherent limitations.  The ICCPR again, this time article 19:

Article 19

(1) Everyone shall have the right to hold opinions without interference.

(2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

(3) The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

So freedom of expression, the right that is at stake here, may be limited to the extent necessary to respect the rights or reputations of others, or to protect national security, public order, public health or morals.  Again there is considerable expert advice from the Human Rights Committee, all of which points to very narrow permissible restrictions on freedom of expression, none of which by the way mentions the sort of restrictions the Premier seeks to impose on political advertising outside the time of an election campaign. 

All of that of course is what was thoroughly argued, assessed and judged in the court ruling his government just lost. In particular that was the main part of the judgement, about half of the ruling, assessing whether the limits could be justified under section 1 of the Charter.  The proper response in such situations (helpful reminder to the Premier and his Attorney General) is to appeal the ruling (who knows, maybe the government's lawyers can be more persuasive the second time), not to thumb the government's nose at and obliterate the Charter of Rights and, in the process, throw the government's international human rights obligations out the window.

“Notwithstanding” rights is the stuff of repression

Violating human rights by outright suspending and then ignoring them is a sledge-hammer tactic of repression used by governments everywhere.  It leads to and perpetuates political and religious persecution, racism, discrimination, arbitrary detention, torture and widespread violations of countless other rights. It insidiously undermines and erodes the fundamentals of freedom and democracy. 

Suspending and derogating from rights is something that the Ontario government and all governments in Canada should stand ready to call out and decry around the world; always and without exception.  Instead, turning to section 33, when it is clearly not even remotely within the realm of what is anticipated under international human rights norms, gives repressive governments everywhere a free pass. 

This particular step of course most directly strikes at the rights of the people of Ontario. 

But in undermining international human rights, it weakens the rights of people everywhere.