No one should be astonished Ontario Premier Doug Ford plans to use the Canadian Constitution’s Notwithstanding Clause to wiggle out of a judge’s scathing ruling declaring his hurried and sloppy legislation to cut Toronto City Council from 47 to 25 members to be unconstitutional.
Mr. Ford and a lot of politicians like him – especially but not exclusively on the right – hold your fundamental rights and the rule of law alike in contempt.
This has long been evident from what details we know of Premier Ford’s personal life before and after he entered politics, not to mention his conduct and that of his late little brother Rob when the latter was the out-of-control mayor of Toronto.
What’s different now is that as the elected premier of Ontario leading a majority government in the provincial Legislature at Queen’s Park, Mr. Ford has a legislative tool at his disposal to glibly overturn the supposedly constitutionally “guaranteed” rights of Canada’s citizens so he can resuscitate a law that appears to have been scratched out on a cocktail napkin in one of his favourite watering holes.
There were certainly grounds for the Ford Government to appeal Ontario Superior Court Justice Edward Belobaba’s ruling that Mr. Ford’s sloppy legislation violated Torontonians’ freedom of expression, providing constitutional grounds to overturn it.
That said, Justice Belobaba was once the law clerk to the chief justice of the Supreme Court of Canada and a founder of the Supreme Court Law Review, so from Mr. Ford’s perspective, the danger his decision could stand up on appeal to the Supreme Court must have seemed real.
The so-called Better Local Government Act is hardly a vital security measure that must be passed swiftly in defence of the realm at the risk of trampling a few citizens’ rights. It’s doubtful it’s even what Mr. Ford and his supporters claim it is: An effort to introduce a more efficient civic government that will save taxpayers money.
All the evidence suggests it is principally designed to get revenge on Premier Ford’s and his brother’s enemies at Toronto City Hall, including Toronto Mayor John Tory, with the longer-term goal of putting the premier’s thumb on the municipal electoral scales in favour of conservative politicians.
With no compelling reason to enact Mr. Ford’s legislation while Toronto is in the midst of the campaign leading up to the Oct. 22 municipal election, the approach a reasonable government concerned about the fundamental rights of its citizens would have been to appeal the ruling to a higher court.
If the appeal was not successful, there would still have been plenty of time to draft legislation that achieved the same goals within the limits prescribed by the Charter of Rights and Freedoms. This doesn’t sound like it would have been a problem since a big part of Justice Belobaba’s issue with the plan had to do with the speed with which it is being implemented.
By any measure, then, none of this warrants Mr. Ford’s outright assault on the fundamental rights of Canadians – and not just the ones who live in Toronto.
We do know from past public opinion research that the Charter of Rights and Freedoms is viewed favourably by large majorities in all regions. A public opinion poll in the early years of this century found more than 70 per cent of Canadians believed the Supreme Court and not legislatures should have the final word on the constitutionality of laws.
In other words, Canadians already suspected Section 33, the Charter’s Notwithstanding Clause, was an unexploded bomb (in Andrew Coyne’s apt phrase) long before Mr. Ford came along and exploded it in the service of a past petty city hall squabble.
Of course, in addition to the usual misleading squeals about “activist judges,” Mr. Ford’s supporters in the news media, the Astro-Turf sector, and on social media were confidently shouting the opposite – that Canadians trust legislatures over the courts.
One suspects that over the next few days that the Ontario Conservatives and Conservatives elsewhere who are tempted to imitate them will be disabused of this notion. But you never know. Mr. Ford is betting the opposite happens.
If you’re concerned about this, even if you don’t live in Ontario, this might be a good moment to pick up your telephone and give your own representatives a piece of your mind. If you live in Toronto, you should probably grab your pots and pans and hit the streets.
And in future election campaigns everywhere in Canada, voters need to ask politicians, specifically, every time, in what circumstances they would use Section 33.
Those TMX permits may not be legal, but the injunction probably still is
Mr. Ford’s excesses are bound to renew calls here in Western Canada for Ottawa to use the Notwithstanding Clause to overturn last month’s Federal Court of Appeal ruling that upended the federal cabinet order authorizing construction of the Trans Mountain Pipeline.
Alas for advocates of this approach, Section 33 only applies to fundamental freedoms, legal rights and equality rights, so it cannot be used to overturn the Federal Court’s TMX ruling, which hinged on the lack of proper consultation with First Nations along the route and the need to study its potential impact on marine wildlife.
Federal Green Party Leader Elizabeth May was surely right, though, when she wrote recently that “if the decision had been delivered in February, there would never have been an injunction against protesters and there would have been no arrests. All the arrests happened when the permits were illegal, but had not yet been ruled to be so.”
Unfortunately – that rule of law thing again – Ms. May likely cannot claim not to have been in contempt of court when she was arrested in March for protesting near the pipeline’s terminal in Burnaby, B.C.
As a legal expert of my acquaintance explained, “an injunction, once granted, is an order of a superior court of original jurisdiction, and therefore disobedience of the order can be punished as contempt.” In other words, the contempt finding isn’t invalid just because the law it was based on is.
However, legal counsel for protesters in B.C. might get some value from trying to have the injunction set aside, seeing as the permits have now been ruled not to be legal.
In case you were wondering, Tom Parkin was canned by Postmedia
Many Canadians were unhappy to learn on social media over the weekend that Tom Parkin, Postmedia’s only genuinely progressive columnist, had filed his last words to English Canada’s largest publisher of newspapers.
Mr. Parkin, who technically wrote for the Toronto Sun, did not make it crystal clear in his initial Tweets on the topic whether he was pushed, or if he jumped. I can tell you with confidence Mr. Parkin was pushed.
Apparently editors at increasingly politically partisan Postmedia were not prepared to tolerate the idea a progressive columnist in one of their publications might sometimes dare to criticize the likes of Jason Kenney, Andrew Scheer or Stephen Harper, as Mr. Parkin did from time to time.
Their attitude was that it was OK for Mr. Parkin to be progressive – as long as he was attacking Justin Trudeau and the Liberal government in Ottawa from the left, thereby undermining the informal coalition that brought the Liberals to power in 2015. Fulfilling that function was presumably the reason they hired him.
When Mr. Parkin pushed back at their efforts to discourage columns that didn’t fit into their narrow definition of what is acceptable for a progressive writer to say in their pages, he was done for.