Superior Court Justice Edward Belobaba’s Monday morning decision to strike down Premier Doug Ford’s plan to cut Toronto city council to 25 wards has once again thrown the October municipal election into chaos — and that was before Ford dropped a bombshell response.

Ford told reporters Monday he will invoke Section 33 of the Charter of Rights and Freedoms — the controversial “notwithstanding” clause — to revive the bill to cut council when he recalls the legislature on Wednesday.

“We’re taking a stand,” he told a news conference, calling Belobaba’s decision “unacceptable” and adding he won’t be afraid to invoke the clause again.

“We have a mandate from the people,” he said, adding he has “no grudge at all” against Toronto and “the people will be the judge and jury.”

Ford’s late July plan to chop council almost in half was met with criticism that the decision was undemocratic, especially in the middle of the election.

“The province has clearly crossed the line,” Belobaba wrote in his decision released early Monday that found Bill 5 violated the charter.

Ford’s intention to use the notwithstanding clause — the first time it would ever be invoked in Ontario — leaves even more confusion and questions.

But experts say there’s no way to stop Ford from using the clause, he just has to act fast.

Here’s everything you need to know about the notwithstanding clause, how it might apply and what may happen next:

What is the notwithstanding clause?

The clause — Section 33 of the charter — was intended as a kind of “safety valve” to give Ottawa or the provinces a mechanism to overrule charter rights that conflict with their legislative agenda, said University of Waterloo associate professor of political science Emmett Macfarlane.

“It was part of the compromise that allowed the Charter of Rights to exist,” he said.

The clause has been controversial since it was accepted as part of the charter at the 1981 First Ministers’ Conference, during a national debate over repatriating the Canadian Constitution.

The clause “allows Parliament or the provincial legislatures to effectively immunize legislation from charter review for up to five years,” added Carissima Mathen, a professor of law at the University of Ottawa.

The clause was introduced as a compromise to appease several provinces that were opposed to the charter, said Thomas S. Axworthy, who was principal secretary to then-prime minister Pierre Trudeau.

“They worried that the courts would have an undue policy influence,” he said, adding the alternative was a referendum on the charter as a whole.

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Does the notwithstanding clause even apply here?

According to a May 2018 parliamentary research paper, the notwithstanding clause deals specifically with two broad areas of the charter: Section 2, which deals with fundamental rights such as the freedoms of expression, conscience, association and assembly; and Sections 7 through 15, which concern the rights to life, liberty and the security of the person, as well as a variety of other legal rights.

Belobaba’s decision refers to Section 2 (b) of the charter — freedom of expression — which means the clause should apply, said Mathen.

“It’s pretty strict in what it applies to,” she noted. The notwithstanding clause cannot be used to overrule the sections of the charter that concern democratic rights — Sections 3 through 5 — but Belobaba’s ruling does not appear to explicitly find that Bill 5 violates these sections.

Can Ford invoke the notwithstanding clause?

Yes. All the premier needs to invoke the clause is to pass a vote in the legislature, Mathen said.

“He can do it because he has a majority government. That’s all he needs to do,” she said.

Practically, Ford’s government needs to amend and repass Bill 5 with a notwithstanding declaration in it.

The law would then not be subject to any charter challenge for five years.

What’s the timeline?

If Ford wants to preserve Bill 5 for the rapidly approaching election, he’ll have to reintroduce it “immediately,” Macfarlane said.

“It would have to be lightning fast,” he said.

Ford’s government will likely try to limit debate and prevent the opposition from slowing the bill’s progress, he said, adding it’s an “open question” how quickly the new law can get through the legislature.

“This is an unprecedented situation,” Macfarlane said.

Has the notwithstanding clause ever been invoked in Ontario?

No. “It’s only very rarely been used outside of Quebec,” Macfarlane said.

Where has it been used?

Not long after the charter was adopted, Quebec’s separatist government used the clause in an “omnibus” fashion, Macfarlane said. “They basically tried to apply it to all the legislation on their statute books as a form of protest.”

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The most famous example, also from Quebec, was the use of the clause to overrule a 1988 Supreme Court decision that struck down a law requiring French-only signage, he said.

According to the parliamentary research paper, the clause has also been invoked in the Yukon, in a 1982 law that never went into force; in Saskatchewan, to protect back-to-work legislation; and in Alberta, in a 2000 private member’s bill that defined marriage as an exclusively heterosexual institution.

The clause was also invoked last year in Saskatchewan over Catholic school funding.

What are the risks of using the clause?

Axworthy, who is now a distinguished fellow at the Munk School, said he was always opposed to the notwithstanding clause.

But he saw it as a way to pass the charter, appeasing provinces like Alberta and Saskatchewan without putting the country “through the wringer” of a referendum.

He said he has always worried the clause would be abused.

“In the cabinet debate about accepting the compromise, there were many ministers who didn’t want to accept it because they feared the kind of thing that just happened this afternoon,” he said.

To use the “absolute hammer of the notwithstanding clause, which is to be used in the most serious of issues, on a personal whim” is “shocking.”

Is there anything the city can do to stop Ford from using the clause?

No. The city can’t prevent Ford from invoking the clause.

The catch, Mathen said, is that Ford “can’t make the notwithstanding clause apply retroactively.”

The clause will only apply from the date it’s passed. As long as Ford can pass it before the Oct. 22 election date, the election should go forward on the basis of 25 wards instead of 47, Mathen said.

What about trying to proceed under another section of the charter that’s not covered under the clause?

Macfarlane said this would be “theoretically” possible, “but there’s probably no realistic section where that works.”

The one section that would be relevant is Section 3, which covers the democratic rights of citizens. But Macfarlane said that section only applies to federal and provincial voting rights, not municipal ones.

If Ford invokes the notwithstanding clause, can the city appeal?

No. There’s nothing the city can do to appeal a law that invokes the notwithstanding clause, both Macfarlane and Mathen said.

How big of a deal is this?

Using the clause for the first time ever in the province is a very “dramatic move,” Mathen said.

“I wouldn’t predict that if he uses it this time you’re going to have the floodgates open, but it is a significant moment.”

For people who already feel Bill 5 was unfair and undemocratic, invoking the clause will only compound that sense of injustice, said Macfarlane.

But it might play well with Ford’s base, after he framed Monday’s court decision as the action of an appointed judge who was trying to block his attempts to make government more efficient.

What if Ford decides to appeal the ruling?

He could appeal and invoke the notwithstanding clause at the same time, Mathen said, in order to “get a higher court weighing in on the substantive issue.”

But the appeal decision “wouldn’t have any impact on the ground,” because the notwithstanding clause would apply anyway, Macfarlane said.

At his Monday news conference, Ford said he would appeal the ruling.

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