Ford's use of the "notwithstanding clause" is inexcusable

The very fact that Ontario Premier Doug Ford is even considering using the "notwithstanding clause" shows just how little he values the Canadian Charter of Rights and Freedoms. Don't forget that when provincial election time rolls around next year.

When the Ontario Superior Court ruled earlier this week that Ford's proposed Election Finances Act infringes on Charter rights, most governments would respond by either appealing the ruling or redrafting the legislation so as not to contravene the country's laws. Not Ford. His response is to "go nuclear" by reconvening the legislature and forcing the issue by invoking the notwithstanding clause (also known as Section 33 of the Charter).

That is technically his right; the possibility is enshrined in the law itself. But this recourse is considered by almost everyone to be a last resort, to be invoked only under extreme circumstances. That is made quite clear in the wording of the Charter itself ("extraordinary circumstances"). The clause has only been used very infrequently in the past, mainly by the province of Quebec, and never by Ontario. Doug Ford wants to use it to force through a relatively unimportant and ill-advised law that he believes will favour him in the upcoming election. That is really not what the provision was created for (as several of the Charter's original architects have made clear, warning that it should not be used merely to evade due process of law).

The proposed Election Finances Act is designed to limit third-party spending outside of an election year, and it widely believed that Ford is worried about union and corporate PAC advertising against his Conservative government. The Superior Court, though, ruled that several sections of the proposed Act were unconstitutional, unnecessary and excessively repressive of rights to free expression. Doug Ford, though, for whatever reason, sees the bill as absolutely essential for Ontario (read, himself), hence his recourse to the entirely inappropriate remedy of the notwithstanding clause.

As much as anything, Ford's response is a good indication of the shaky ground his re-election prospects lie on. But he must not be allowed to ride rough-shod over our rights and freedoms in this way. And, if you ask me, the whole notwithstanding clause loophole needs to be plugged: maybe its original intentions were honorable, but it is just too open to abuse by over-ambitious and overreaching politicians.