Alberta Politics
Ontario Premier Doug Ford (Photo: Andrew Lewis, Creative Commons).

Notwithstanding common sense, no one should be surprised by Doug Ford’s use of Section 33 to shore up his lousy law

Posted on September 11, 2018, 1:42 am
11 mins

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.

Former Toronto Mayor and Doug Ford’s little brother, Rob Ford (Photo: Wikimedia Commons).

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.

Justice Edward Belobaba (Photo: Used by several news organizations, attributed by none, beats me).

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.

Toronto Mayor John Tory (Photo: Wikimedia Commons).

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.

Green Party Leader Elizabeth May (Photo: Twitter).

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.

Former Postmedia columnist Tom Parkin (Photo: Twitter).

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.

7 Comments to: Notwithstanding common sense, no one should be surprised by Doug Ford’s use of Section 33 to shore up his lousy law

  1. Bob Raynard

    September 11th, 2018

    “activist judges”, “that Canadians trust legislatures over the courts”

    Do these comments also apply to conservatives’ plan to take the federal government to court over the federal carbon tax?

    Reply
    • Sam Gunsch

      September 12th, 2018

      Pretty sure the Ford/ON conservatives are in a deep authoritarian hole they dug for themselves when Radwanski criticizes them: EXCERPT: ‘
      Adam Radwanski
      ‏Verified account @aradwanski
      2h2 hours ago

      Adam Radwanski Retweeted Doug Ford

      It’s a bit unusual for a premier of a province of 13.6 million people to specify that he’s delivering for the 2.3 million people who voted for him. Usually they at least pretend to be governing for everyone.

      Adam Radwanski added,
      Doug Ford
      Verified account @fordnation
      We are going to call back the legislature to invoke Section 33 of the constitution that will ensure that the Better Local Government Act remains in effect as passed by Ontario’s democratically-elected legislature.
      15 replies 99 retweets 210 likes

      Reply
  2. Todd Harris

    September 11th, 2018

    Why don’t John Tory and interested councillors simply boycott the upcoming Toronto municipal election?

    I am sure it would prove to be an effective tool to challenge Doug Ford and his autocratic ways of governing.

    Reply
  3. David

    September 11th, 2018

    I was hoping Mr. Ford was going to settle down a bit and not aspire to be as erratic and impulsive as Trump, but this not withstanding situation is really not a good sign. I am guessing Mr. Ford’s honeymoon will be short and the Federal Conservatives are probably quietly cringing and worrying about what else he might do that will probably ultimately hurt their electoral chances. With the unpopular Ms. Wynne gone, the Federal Liberals have fewer worries about Ontario now than the Federal Conservatives. The Ford win is at best a mixed blessing for Federal Conservatives and at worst could end up being a great regret for them.

    The court decision was sensible and really not that harsh on Mr. Ford’s plan. His powers were not disputed, the issue was really the timing. He could have taken it like a grown up and simply just put his plan into effect after the next municipal election and that likely would have been fine. It wasn’t even a clear campaign promise, so I am not sure why he seems to want to make it such a hill to die on now.

    I suppose his promise fits in with the populist distrust of judges and politicians. Hey wasn’t Ford a municipal politician, his brother was mayor and his father a long serving politician too? The Ford dynasty are probably actually more part of the political elite than those politicians they like to attack, but then faux populism involves a lot of pretending – like the billionaire (or is it millionaire?) US President who offers corporate tax cuts, attacks health care and then pretends to be for the working person.

    I suppose this populism appeals to some of the conservative base, but I get the feeling a lot of the rest of the people will quickly tire of these phony populist battles. I think Ford would be wiser not to waste any political good will he has on things like this, but perhaps this sort of thing is better in the long run for for more progressive voters. It makes it more likely the Ford era will be brief and not fondly remembered.

    Reply
  4. tom in ontario

    September 11th, 2018

    Doug Ford’s antics have practically assured John Tory’s reelection as Toronto’s mayor.

    Reply
  5. Scotty on Denman

    September 11th, 2018

    I’ve been waiting for the courts to order an election be redone ever since, federal election before last, the Ontario riding of Etobicoke was awarded by the court to the Conservative candidate despite evidence of voter fraud and voting irregularities that should have nullified the riding election were, instead, ignored and a statistical model—not an actual vote count—was used to determine the winner. I’m not aware of anything like it elsewhere, or at any other time, in Canadian electoral history. Ballot-stuffing and voter-roughing, yes, but stats?…

    This highly irregular and unique decision might have had its ramifications, nevertheless: it added the suspicion that the vote was rigged to an already growing list of accusations and actual convictions of Conservative party hacks—and even one Con MP (who was subsequently jailed for electoral fraud after losing an appeal of his original conviction)—and of the party itself, for breaking the law. More over, the Cons’ “Fair Elections” Act was a thinly veiled attempt to suppress non-Con voters’ votes. And, of course, there were the Cons’ Robocalls designed to misinform targeted, non-Con voters as to where they could cast there votes. These judicial “recounts” (Etobicoke was not actually a re-count), trial convictions, dirty tricks and suspect legislations eventually added up to the conclusion that the Harper-Cons were prepared to cheat the system in order to win elections undemocratically. Once that became clearly outed during Harper’s final, desperate attempt to game voters by arranging an extraordinarily long campaign period (in order to massage bad news from the concurrent Mike Duffy trial to the dwindling Con base corralled at ‘members-only’ campaign rallies), many moderate conservatives finally woke up and switched while a sharp spike in young voters’ participation loaded up the anti-HarperCon bandwagon and steamrolled in JT’s favour (ironically, the extra long campaign period allowed the third-place, rookie-led Liberals enough time to gain the momentum that propelled the party from third to first place, a Canadian first).

    I’m not prepared to lay electoral blame on any particular party: gerrymandering and smearing are stock-in-trade politics. I may be biased in remembering only the prominent cases of right-wing gerrymandering; certainly the HarperCons took electoral shenanigans to a new level in recent Canadian history (otherwise our whole history contains many examples of illegal and gross disenfranchisement, and many instances of very, very dirty electoral tricks). And the politcal right’s complaints about judicial activism have been heard squealing out of the sour-grape whine press whenever rightists feel they’re being screwed (and these guys are very, very sensitive in this aspect). Perhaps Trump’s shockingly distasteful and unwarranted slagging of US judges who dare to remind him of the law has made us all more sensitive to the ploy. Indeed, the D’ohFo emulates the Orange One with cringe-inducing cheerfulness and chauvinism. But his Trump-aping is not enough to indict, at least not in the staid arena of the law courts. D’ohFo’s aims to circumvent the courts might land his government deeper in the docket than ever. He doesn’t seem to worry unduly.

    Like Trump, the D’ohFo delights his supporters with his complete miscomprehension of the law and the rule of law—which neither he nor his fans can distinguish, in any case. It doesn’t matter to any of them; what does is the increasingly familiar paean that the elected legislator is more legitimate than the appointed judge. D’ohFoids don’t know much because they feel they don’t need to know much—which comes in handy when confronted with real facts they don’t like to discuss. D’ohFo simply reads from The Donald’s playbook which, rest assured, contains no multi-syllabic words that are difficult to say—like “anonymous”. In fact, as sure as the Orange One has never heard of the separation of powers, the D’ohFo is self-assured. He seems not to have considered much beyond some advisor’s reminder that Section 33 exists for him to save demogouery from the evil judiciary.

    D’ohFo doesn’t need to count, only to top or to half his opposers. Has he considered how long it will take to table, read and enact the so-called ‘notwithstanding clause’? Probably not, only that his superior number of MPs, by his own judicious activity, licence his desire to decimate his political opponents. Would it surprise anybody that such legislation would almost certainly be challenged in court, too—as surely as an appeal of the original injunction would be denied since there appears to be no error in law? What would the D’ohFo do then? The injunction makes clear that the real issue is D’ohFo’s attempted interference with a democratic process (the Toronto civic election) precisely because it’s already in progress, citizens have already engaged politically, the exercise of democracy par excellence.

    I’d love to hear a judge say: “Do this (Toronto civic) election again, only do it properly—the last one was unconstitutionally interfered with.” That’s a precedent I’d love the D’ohFo to wear.

    If D’ohFo is as reliably Trumpian as he’s been so far, we can expect him to use frustrations of his democratic interferences to fuel an inter-election campaign to rally the buck-a-beer base to vote out the judges for the sake of freedom—to bash whomever they don’t like. Possibility doesn’t matter. It’s a party, not a party.

    As I’ve said: God’s purpose for the D’ohFo is to help destroy the neo-right-usurped, nominal Conservative party of Ontario, once and for all. To be sure, the cheap drunks won’t be the judge of that.

    Reply

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