Constitutional ‘architects’ Roy McMurtry, Jean Chrétien and Roy Romanow in 1981, with a youthful Hugh Segal, in glasses, then an aide to Ontario Premier Bill Davis (Photo: Mr. Segal via Policy Options).

By making use of the Canadian Constitution’s Notwithstanding Clause to wreak petty vengeance on his old adversaries at Toronto City Hall, Ontario Premier Doug Ford has actually done Canadians a favour.

After 36 years of delusional complacency, we have now had confirmed what anyone who was really paying attention knew from the get-go in 1982.

A more recent photo of former Canadian Liberal prime minister Jean Chrétien (Photo: Wikimedia Commons).

To wit, the parts of the Canadian Charter of a Rights and Freedoms that really matter aren’t worth the yellow paper they are printed on.

Fundamental rights? Legal rights? Equality rights? All meaningless.

Turns out – as so many of us worried back in 1982 – that thanks to the Conservative premiers of the day our fundamental constitutional guarantees are merely aspirational, or not even that, just a way to keep the dummies quiet.

As Mr. Ford has proved, all that is necessary to eliminate our rights (other than the rights to vote in a gerrymandered provincial or federal election or leave the country) is an autocratic tyrant with a majority of cowed and unprincipled lickspittles making up his or her majority in a Legislature. In other words, exactly the situation that prevails at Queens Park, as Ontario’s legislature is quaintly known.

So thank you, Doug Ford, for clarifying that. You have done a service to the nation. Seriously.

In doing so, you have also illuminated the need to do something about it – and about you and your government.

Former Ontario Conservative Attorney General Roy McMurtry (Photo: Osgoode Hall).

As for the drafters of this so-called Charter of Rights, those of you who are still drawing breath, you will just have to forgive us if we Canadians conclude you actually don’t have that much to contribute at this point.

Three of the Charter’s surviving “political architects,” we have been informed, have condemned Mr. Ford’s authoritarianism in a letter.

Former prime minister Jean Chrétien, 84, former Saskatchewan Premier Roy Romanow, 79, and former Ontario Attorney General Roy McMurtry, 86 – a Liberal, a New Democrat, and a Conservative, no less – published a statement Friday explaining to Mr. Ford that, notwithstanding what they wrote and agreed upon in 1982, their efforts apparently weren’t meant to be taken seriously.

No, you see, the override clause they snuck into our national bill of rights – which was supposed to clarify and strengthen the traditional unwritten rights we inherited from the British constitution – was only to be used in “exceptional situations, and only as a last resort after careful consideration.”

Former Saskatchewan NDP Premier Roy Romanow (Photo: David J. Climenhaga).

What cheek! My question for Messrs. Chrétien , Romanow, and McMurtry: Why the hell didn’t you write it that way, then?

No, I don’t think we Canadians want to be going back to those gentlemen for their thoughts on how to fix this, and perhaps not to their political heirs either.

“We condemn his actions and call on those in his cabinet and caucus to stand up to him,” the Three Amigos said. “History will judge them by their silence.”

Well, they’re certainly right about that. History will judge Mr. Ford’s spineless MPPs to be either unprincipled cowards or supporters of their leader’s autocratic impulses. But so what? That’s pretty symptomatic of the state of conservative politicians worldwide at this point in history, just look at the crumbling Republican Party south of the 49th Parallel.

But Mr. Ford has considerably tarnished the architects’ political legacy too, just when they thought its lustre would never fade.

The letter of the law is all that matters in such affairs. Someone will always abuse the spirit of the law. The zeitgeist dictates that in the present era the abusers are most likely to be on the neoliberal right. It wasn’t always so and won’t always be so.

We need to take measures against tyrants of all stripes.

One way or another we Canadians are going to fix this. It may not be pretty, it may take a long time, but we will get it done.

It certainly won’t be done with the help of the architects of the Constitution Act, 1982, who it turns out ought to have taken out reputational errors and omissions insurance.

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  1. Exactly so.

    One still has a concern that your average Canadian citizen is rather bereft of any real knowledge of the points you make. There may be little impetus for some brave politicos to stick their heads above the parapet to correct this weaselly way out for the unashamed non-gentlefolk to act against the remainder of established law. Doug Ford is of the simpleton variety who do not comprehend what they don’t understand and who are no doubt proud of their profound ignorance, regarding it as antidote to perceived pointy-heads.

    Ontario under the Fraud and Quebec feeling its “uniqueness” will object to dumping the notwithstanding clause. And that represents over 50% of Canadians. Still, unless someone tries, we are subject to any thick-headed doink in power acting like a minor autocrat while claiming populist support, so let’s hope your more optimistic viewpoint prevails. The provincial Conservative MLAs in Ontario sitting on their hands letting Fraud get away with it act like Repugs supporting Trump, but are perhaps even more sheeplike, more’s the pity.

  2. It is good to see that you have recognized the architects of the the notwithstanding clause, that being Chrétien, McMurtry and Romanov. As for your belief that this clause was snuck in I will quote from a Huff post article from 2012: How Bill Davis Saved Canada.

    “Trudeau’s allies were Ontario’s Bill Davis and New Brunswick’s Richard Hatfield, both Progressive Conservatives. The other eight premiers coalesced into the infamous “Gang of Eight”, which had proposed a different plan for Canada’s constitution– a supreme law without a charter or rights and with an “opt out” clause for federal programs with financial compensation to be provided to the province’s.”

    “After three days of stalled negotiations, federal Liberal Justice Minister Jean Chrétien , Ontario PC Attorney-General Roy McMurtry and the latter’s Saskatchewan NDP counterpart Roy Romanow devised what became known as the Kitchen Accord, in which the premier’s would drop the ” opt out clause” if a “notwithstanding clause” — allowing for a legislative override of judicial decisions — was included in the charter.”

    Now I could quote more but basically Bill Davis called Trudeau, told him if he didn’t accept the notwithstanding clause he and Hatfield would back the gang of eight opposing adopting the charter of rights. Trudeau agreed and everyone but Quebec signed on. So it doesn’t appear to me it was snuck in.

    I don’t believe what Doug Ford is doing is politically prudent. But I also don’t think it is as catastrophic as you seem to think it is. Everybody still has a right to vote, they still can demonstrate freely if they so chose, they will simply have less members in council. Should this change have waited until after the election? Absolutely. Enjoy your day

  3. I am not as harsh on those that put together our Constitution and Charter. I think they did the best they could at the times. The notwithstanding clause was the price for some premiers who were uneasy with the Charter to sign on and it seems to have worked mostly as intended for over 35 years.

    However, I agree Mr. Ford’s misuse of it does give us cause to think. Have we been living with the illusion the Constitution is better than it is all slong? It is quite possible we may need to go back to revisit things and fix what Mr. Ford’s somewhat rash and petty behavior has shown to us is a problem. No one is perfect and it would be foolish to think we got things perfect the first time around. As the US constituion shows with their zillion ammendments, constitutions can and sometimes should be changed. Even though I think ours is still better than theirs – of course we had the benefit to see and learn from some of their mistakes, ours still can be improved.

    The tough part will be in getting enough will and agreement to make improvements. Obviously, Mr. Ford will be unlikely to agree to something that would reign in his bad behavior so I think the change may not happen for at least a few years. At least that will give us some time to think about it and talk about it, which may help us get it right.

  4. Dubya, Obama, Trump, Blair, Cameron, Macron, Harper, Trudeau Jr., Ford Bros, Trump, Kenny in the wings, Notley
    (Even Horgan the LNG/SiteC supporter … not the hide-behind-native-people-anti-TransMountain-Horgan)

    Some have good manners, make better court appointments, nominally respect constitutions and try occasional ‘progressive’ policies while others are more blatant in their civic vandalism (which rarely gets fixed by the ‘progressives’)

    But they are all prevaricators and climate criminals. They are leading us into a Mad Max type future

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