Monday, February 12, 2024

Ford government's attempts to evade the law should concern us all

The Ford government on Ontario is no stranger to controversy. I can't remember a government that has made more U-turns, many of them because it was pointed out that their policy changes were not actually legal or constitutional, from a whole bunch of different standpoints. Just to mention a few of these flip-flops: redefining the Greenbelt, dissolving Peel Region, new licence plates, anti-carbon tax stickers on has pumps, a French language university, autism funding (there's a handy list here). The latest of these is the repeal of Bill 124 (the imposed wage cap on public sector workers), which the Court of Appeal found to be unconstitutional just today.

I also can't remember a government that has gone to such lengths to try and immunize some of its more contentious decisions from lawsuits and legal challenges. In addition to its happy-go-lucky approach to invoking the "notwithstanding clause" - which, by definition, is only needed when a government wants to do something unconstitutional, which raises the entirely reasonable question of why we have it at all - the Ford administration has taken to embedding clauses in its legislation that have the express function of short-circuiting the ability of judges to review the decisions. This can't be a good thing.

The extent of the Ontario government's attempts to evade lawsuits and to shield its decisions from judicial review have put it out it in a class of its own. Even Alberta hasn't sunk to these depths. It includes language in its bills that even try to block court awards if the government or its former employees engage in "misfeasance" or "bad faith". It's like it knows that it's doing something really bad, but it's tryong to get out ahead and avoid legal responsibility.

It did these things with its illegal Greenbelt moves last year, and with any number of minister's zoning orders (MZOs) over the last several years, including ones that supposedly apply retroactively. It's doing it again with its controversial plans for Ontario Place, declaring that the project is exempt from the usual environmental assessments and heritage laws for such a development, not to mention violating all "rules of natural justice" and "principles of public trust".

They often try to justify such provisions on the grounds that they are needed to minimize costs to taxpayers and to reduce delays owing to litigation. But the constitutional rules and laws are there for a good reason.

Luckily for us, there are a whole host of organizations out there taking the government to task on these outrages, organizations like EcoJustice, Ontario Place for All and Ontario Place Protectors. The Ontario Court of Appeal and even the Supreme Court have also stepped in to protect us from some of the government's excesses from time to time. But it shouldn't be up to individual citizens to stop our government from breaking the law. Indeed, it used to work the other way around! It represents an attack on our very democratic rights.

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