In the waning days of 2021, the Ontario Superior Court (Divisional Court branch) ruled that the province’s government violated the constitutional rights of Ontario teachers from ethnic minority backgrounds. The offending, unconstitutional, discriminatory policy? Requiring prospective elementary and secondary school teachers to pass a Grade 9 mathematics test. This untenable judicial intervention in a contested area of social policy presents yet another occasion for a justified recourse to the notwithstanding clause, a constitutional mechanism designed precisely with such a situation in mind.
By way of background, in 2019, alarmed by falling student math scores, the Ford government introduced legislation to require teachers to pass a Mathematics Proficiency Test (MPT). It is emphatically not a difficult test. It consists of 75 multiple choice questions, assessing basic math skills taught in Grades 3 to 9—in other words, skills which any Ontario student is already required to master to graduate—as well as mathematics pedagogy. The test was designed as a two-hour test, but test-takers are allotted three hours to complete it. Those who do not pass the MPT at the first attempt are allowed an unlimited number of retakes. A score of 70 percent on both the mathematical and pedagogical questions is required to pass. Unsurprisingly, over 85 percent of all test-takers manage to pass it.
One might well think that it is perfectly reasonable to require teachers to know at least as much as their students, given that any Ontario teacher can be required to teach mathematics. Not so for the Ontario Teacher Candidates’ Council, an organization established with the help of the Ontario Teachers’ Federation to oppose the test. It launched a constitutional challenge against the legislation, arguing that the MPT was discriminatory because it adversely impacted racialized teacher candidates. To put it more bluntly, the Ontario teachers’ union was arguing that teachers from minority backgrounds could not be expected to know how to do basic math.
The Divisional Court agreed with this remarkable proposition. Three judges ruled that mandatory teacher competency testing in mathematics led to a “significantly lower pass rate for racialized teacher candidates” and “places additional burdens on racialized teaching candidates, imposes burdens and denies benefits in a manner that has the effect of reinforcing or perpetuating disadvantage.” It held that the MPT violated section 15 of the Canadian Charter of Rights and Freedoms, which provides that “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination.” The court struck down the legislation and ordered the Ontario College of Teachers to certify teachers who did not pass the MPT, but who otherwise met the requirements.
Fortunately, the notwithstanding clause remains a ready remedy for such temerarious excesses of judicial power. As the Supreme Court of Canada explained a 1998 decision, “s. 33, the notwithstanding clause, establishes that the final word in our constitutional structure is in fact left to the legislature and not the courts.” Previously, the Ford government had reason to invoke s. 33 in response to a court ruling that struck down restrictions on third-party political spending.
The use of the notwithstanding clause does not amount to the abdication of constitutional rights, as critics often claim. Rather, the clause is an integral part of the Charter that permits a legislature to express its disagreement with judicial interpretations of rights, and to act in accordance with a reasoned, alternative conception of the meaning of a right. Our democratically elected representatives may reason that properly interpreted, section 15 requires governments to respect persons as equals, in contrast to the Divisional Court’s view that a math test is discriminatory purely because it leads to differential impacts.
Ironically, for many years after the Charter’s enactment, the Supreme Court of Canada supported this very conception of equality rights, according to which the central question was whether a particular law demeans a person’s dignity. Can it truly be argued that expecting teachers to demonstrate their competence in basic math—an essential occupational requirement—is demeaning of their dignity? To ask the question is to answer it.
Some critics of the notwithstanding clause also contend that invoking it without appealing the relevant court ruling is illegitimate. But where it is the courts’ own jurisprudence that engenders a flawed interpretation of Charter rights, expecting an appeal to be undertaken may be both futile and a concession to the very judicial supremacist thinking that s. 33 was meant to counterbalance.
The Divisional Court’s decision was in many ways the logical consequence of recent Supreme Court precedents, which it was legally bound to apply. In a 2020 case called Fraser, the Supreme Court held that courts may find a law to be discriminatory purely on the basis of their “adverse effects,” without regard to the intent of the law or to the government’s conduct. This approach, as one distinguished appeal court judge has suggested, adopts a “reductive” conception of discrimination that may impugn virtually any law, and stymies the power of governments to act for the common good.
Spurred by that logic, the Divisional Court concluded that the MPT constituted discrimination and that “requiring a math course for B.Ed. programs would be significantly less impairing of equality rights.” In doing so, it relied on readings of contested social science evidence—which may also prove difficult to appeal, thanks to a 2013 ruling from the Supreme Court that appeal courts should generally defer to lower courts’ determinations of “social and legislative facts.”
But it is not unreasonable to require teachers to prove they know as much math as a grade nine student, and it is patronising to suggest that teachers from minority backgrounds cannot be expected to handle a basic math test. Here, the Ontario legislature made a reasoned judgment for the common good, seeking to uphold pedagogical standards that ultimately benefit students of all backgrounds. When the courts insist on undoing such judgments on the basis of a flawed interpretation of a Charter right, the legislature may be duty-bound to invoke the notwithstanding clause.