Tuesday, September 11, 2018

Ford's use of the notwithstanding clause is more scary than the court's decision

Having been stymied by the courts in his revenge actions against Toronto City Council, Doug Ford is apparently willing to go the dangerous route of using the controversial "notwithstanding clause" to get his own way.
In case you are not familiar with the infamous constitutional notwithstanding clause, also known as Section 33, this remedy of the last resort for desperate political leaders was created in the 1980s as a kind of compromise between provincial and federal politicians. It allows a provincial or federal government to enact legislation that overrides several sections of Canada's Charter of Rights and Freedoms for a limited 5 year period. It essentially allows a government to enact laws that that operate in spite of ("notwithstanding") charter rights that the laws appear to violate. It is very rarely invoked, and only in dire circumstances. It has only been used 4 times (mainly in Quebec) since it was established back in 1982 Even Stephen Harper never used it, although he was sorely tempted. Ford would become the first Ontario Premier to make use of it, and indeed even hinted broadly that he would not hesitate to use it repeatedly, and did not rule out similar actions on other city councils (although he has a particular hatred for Toronto).
In a scathing legal decision, Ontario Superior Court Judge Edward Belobaba ruled that Ford's surprise motion to slash Toronto's city councillors from 47 to 25, just weeks before a municipal election takes place, was "antithetical to the core principles of our democracy" and "clearly "crossed the line". He basically ruled that slashing the size of Toronto City Council, in this way and at this time, is not just callous and inappropriate, but it infringes on the freedom of speech and rights of both candidates and voters.
Ford's response to the judge's slap-down in calling his motion unconstitutional was particularly telling. He said that he found a court interfering in the democratic process to be a scary thing. Well, perhaps. But not half as scary as a politician willing to use the notwithstanding clause to override a legal ruling. So, with both sides crying outrage and blustering that the other is attacking and riding roughshod over the very idea of democracy, Doug Ford has unleashed chaos in the legislature, and elicited prolonged and noisy protests by citizens and MPPs.
The notwithstanding clause makes a mockery of our Charter of Rights and Freedoms. It was a bad idea back in 1982 and is an even worse idea now, even though no-one really expected it to be used quite as lightly and arbitrarily as Ford is using it. In this particular case, it is using a sledgehammer to squash a fly, but it also opens up the possibility of using it against other, more important rights and freedoms, and puts cynical and grandstanding politicians like Ford effectively above the law. Bad idea.
However the current case turns out, Canada needs to take a long hard look at the notwithstanding clause, and whether its presence in our constitution can possibly be justifiable.

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