It’s a sad and troubling trend: over the past four years, governments have increasingly used the disrespect clause to override the rights and freedoms guaranteed by charters. In addition, they use it preventively to shorten court proceedings.

The last example is ridiculous: In Ontario, the Ford government passed legislation last Thursday with a different clause … to force an employment contract on 55,000 unionized workers and prevent them from calling a strike day in schools on Friday.

The right to strike is guaranteed for most professions (except for essential services such as police and fire services) by the freedom of association in Section 2(d) of the Canadian Charter. Rather than trying to reach an agreement with unions or debating the appropriateness of his law in court, Doug Ford chose to use nuclear weapons: the clause notwithstanding.

“We live in a democracy and the people have spoken clearly [aux dernières élections] ‘ explains Doug Ford.

This is a very simplistic and dangerous view of our rule of law, our democracy and the role of the courts.

A healthy constitutional state not only includes elections every four years. It is also the protection of the rights and freedoms that are the fundamental principles of our society. The rights and freedoms of some – especially minorities – should not be dismissed lightly on the pretext that it is the “will” of the majority.

Of course, no right or freedom is absolute. Any right or freedom can reasonably be restricted if the legislature has a valid reason (that is the justification clause in Article 1^ah the Canadian Charter). But this very important debate needs to go to court. By using the deviating clause, the legislator avoids this. This week, Doug Ford showed that he doesn’t care about the rights and freedoms of Ontario residents. It is dangerous. Even more so if it becomes a trend across Canada.

From 1982 to 2018, the derogatory provision was only used once in practice to interfere with rights, and that was by the Bourassa government in 1988 to overturn a Supreme Court ruling on commercial signage. Five years later, Quebec amended its Sign Act to conform with the Supreme Court, removing the provision that was no longer needed.

(The Lévesque government regularly invoked the Canada Charter’s exception clause between 1982 and 1985 to protest the unilateral patriation of the Constitution, but this had no practical effect as the Quebec Charter continued to apply.)

Since 2021, Ontario has invoked the different provision twice. Limit campaign spending by unions and third parties. A labor dispute involving 55,000 education workers is expected to be settled this week. It didn’t work as expected: several unions defied the law and school authorities decided to close schools on Friday. We’ll see what happens on Monday.

Quebec isn’t much better, having been used twice during the CAQ’s first mandate. The National Assembly should not have applied the different provision pre-emptively to “Law 21” (the secularization of the state) and “Law 96” (French).

In the long run, it is dangerous to downplay the use of the defiance clause. Whether for questionable legislative reasons (one-day strike) or important ones (French and secularism).

Parliament should only use the exception clause as a last resort to overturn an important and clearly unreasonable court decision.

If you’re trampling on rights and freedoms by frivolously using the no-nonsense clause, you’ll know when to start. Not if it ends.