Regarding Ford’s announced plan to use the notwithstanding clause... There are two theories of the use of the notwithstanding clause.
The first is that the clause is invoked when the government proposes legislation that (very) likely infringes constitutional rights.
The second is that the clause is legitimately invoked when the government believes its proposed legislation is constitutional on a different interpretation of constitutional rights than the one a court has provided.
This second theory is the interpretation of the clause I prefer, though it’s the less popular one.
I haven't seen Ford say that they are invoking the clause based on this second theory, though the fact that they are also appealing the decision could lend credence to this kind of argument.
Invoking the notwithstanding clause is not a normal reaction to an adverse court ruling, particularly if you think the law is on your side and you are dealing with a trial-level ruling. My sense is that the timing of the election is driving this.
My preliminary view is that we should be very concerned about Ford’s statement that he’s not afraid to use the notwithstanding clause and will use it again if necessary.
Whatever you think of the notwithstanding clause, few would advocate for government-by-notwithstanding-clause.
I don’t know whether, as some suggest, this is personal for Ford. But what I do know is that there should be serious, reasoned deliberation within the executive before legislation is proposed that invokes the notwithstanding clause.
As of yet I haven’t seen the government argue that it is invoking the notwithstanding clause because it believes the legislation is constitutional or explain the principles which justify overriding constitutional rights here. We need to see such a justification.
The Court found in this morning's decision that the reasons for the infringement of constitutional rights were “improved efficiency and overall cost savings.” In fact, the Court found that the law did not further a “pressing and substantial objective.”
This is a pretty remarkable finding.
There should also be deliberation in the legislature. I hope opposition MPs press the government for a rationale.
