Alberta Politics
Our Canadian Charter of Rights and Freedoms: Is it worth the paper it’s printed on?

The era of Notwithstanding Clause restraint is over … get used to it!

Posted on September 12, 2018, 1:37 am
9 mins

The era of Notwithstanding Clause restraint is over. Get used to it.

To borrow someone else’s felicitous metaphor, Section 33 of the Canadian Charter of Rights and Freedoms was always an unexploded bomb lurking in the rubble of our country’s constitutional history like a decaying munition under the modern-day pavements of London or Berlin.

Toronto’s elegant, modernist City Hall, where Doug Ford used to work his mischief … and still wants to (Photo: David J. Climenhaga).

When the Notwithstanding Clause was inserted into the draft Constitution before its adoption in 1982, the conventional wisdom, or at least the official talking point, was that it would only be used in the gravest situations after sober reflection. In other words, it was to be a constitutional last resort.

We were reassured that politicians who frivolously misused this mechanism to preserve a vestige of the supremacy of Parliament and the legislatures would pay dearly at the next election.

This was always nonsense, and most of us knew it. It assumed voters had an attention span longer than a few days. Nevertheless, it was a convenient lie to tell ourselves to finish an essential job that may have ensured the survival of the country.

It says something good about Canadians that this consensus held for more than 35 years. Since the adoption of the Charter, Section 33 has been used five times, twice by two provinces, Quebec and Saskatchewan, and once by the Yukon Territory. We can disagree with its use in these cases but still agree that in each there was a serious purpose.

No more. What is startling and new is the picayune nature of the dispute Section 33 is now being used by Ontario Conservative Premier Doug Ford to enforce in spite of the ruling of a superior court.

But the biggest surprise is that this has happened in Ontario, which historically has played the role of the grownup of Confederation.

That said, it was always obvious that sooner or later some extremist clown would be elected somewhere who would throw our consensual niceties into the trashcan of history and leave us with an open-ended constitutional crisis until we figured out a way to resolve it.

That’s where we are now, thanks to Premier Ford, who turns out to be the very model of the modern parliamentary autocrat. He obviously intends to use the Notwithstanding Clause as a constitutional first resort. Why bother doing things right when you can just cheat?

Ontario Premier Doug Ford (Photo: Premier of Ontario Flickr).

That this is happening during the similarly inclined presidential term of Donald J. Trump in the United States of Amnesia should come as no surprise. It’s the zeitgeist, with our own uniquely Canadian twist.

It would have been less of a surprise – and possibly less dangerous, too – if it had happened here in Alberta.

It was tried here twice, both times during premier Ralph Klein’s Conservative government. First, a bill in 1998 used Section 33 to limit compensation to victims of forced sterilization during the Social Credit regime of premier Ernest Manning. But the public outcry was so fierce Mr. Klein dropped the idea within hours.

In 2000, the Klein Conservatives tried it again to block same-sex marriage, and were eventually informed by the Supreme Court they lacked jurisdiction in the matter, a federal responsibility.

Arguably, though, Alberta nevertheless had something to do with the current situation. Leastways, it was when Conservatives here unexpectedly lost the provincial government to, of all parties, the NDP in 2015 that the ongoing nation-wide conservative temper tantrum began to work up a head of steam. Soon all restraint went out the window.

Alberta! Where Conservatives were supposed to reign forever! No exceptions. That may have shaken Canadian Conservatives even more than the loss of the federal government to the Liberals led by another hated Trudeau later the same year.

The late Alberta premier Ralph Klein (Photo: Chuck Szmurlo, Wikimedia Commons).

Conservatives were determined to never let something like that happen again – even if it required the destruction of the country’s democratic consensus. As the Canadian-American conservative writer David Frum observed of the actions of the Trumpocracy, “when highly committed parties strongly believe [in] things that they cannot achieve democratically, they don’t give up on their beliefs – they give up on democracy.”

Mr. Frum wasn’t talking about Mr. Ford, but he certainly could have been commenting on Ontario’s new Dougtatership.

Of course, supporters of Mr. Ford’s creepy-clown extremism are trying to downplay this as if it were an insignificant matter, merely the future of 22 politicians in a municipality far away whose piddling ambitions have been thwarted.

It is very tempting to accept this explanation. It is reassuring. But like a first lie, the use of the Notwithstanding Clause to suspend fundamental rights to win Mr. Ford’s petty personal squabble at Toronto City Hall by gerrymandering that city’s politics in favour of his allies will make Section 33 easier to use. When that happens, it will be used in ways more harmful to the national consensus on which Canada’s peace and prosperity rest.

To paraphrase the old saw about the lost $5 bill, it’s not the lousy five bucks, it’s the principle of the thing.

If this works on a matter of not much concern to Canadians outside Metro Toronto, how many fundamental rights will other impatient Conservatives in other places be willing to trample to win more substantial fights? A lot, of course.

If you doubt this, just consider who is defending Mr. Ford’s logic for ignoring the courts on a matter that could still be resolved by observing the constitutional niceties.

The temptation – or perhaps the necessity – to do the same will spread to politicians with other philosophies as they move to quickly undo the legislative depredations of leaders like Mr. Ford.

No, like the Trump presidency – which like Mr. Ford’s election was something of an unexpected electoral fluke – this is a big problem, and it’s not going to go away.

Obviously we can’t depend on people of goodwill committed to democracy in Mr. Ford’s Conservative Caucus to use the mechanisms of Responsible Government to protect our fundamental rights.

Nor can we count on the federal cabinet to disallow the legislation, or the Lieutenant Governor of Ontario to refuse to grant it Royal Assent, although both have power and precedent to do so.

We Canadians are all going to have to figure out for ourselves what to do about it.

It will not be easy.

9 Comments to: The era of Notwithstanding Clause restraint is over … get used to it!

  1. Ron Austin

    September 12th, 2018

    Here we go down the rabbit hole.

    Reply
  2. Sam Gunsch

    September 12th, 2018

    excerpt: ‘Let’s hope Ford’s courage rubs off on other conservative politicians, federal and provincial.”

    Yup…the lack of restraint is openly being encouraged today in oped columns by the usual suspects in PostMedia’s tabloid version of Pravda for conservatives:

    longer excerpt: ‘But he instantly made them gasp with his promise to invoke the Constitution’s override – the notwithstanding clause.

    A top Alberta Conservative immediately texted me “Doug Ford. BIGGEST. BALLS. EVER.”

    Let’s hope Ford’s courage rubs off on other conservative politicians, federal and provincial.’

    Reply
    • Sam Gunsch

      September 12th, 2018

      On the future use of NW Clause… summary take from an ON journalist… excerpt: ‘Ford has decided that his electoral mandate – not even an actual majority of Ontarians at that – trumps the rule of law and our democratic norms. In fact, he’s threatening to use the Notwithstanding Clause in other policy areas, such as against legal challenges to the province’s sex education curriculum, something that again, looks on its face to be capricious. Ford may claim that this is about democracy, but democracy respects the rule of law. Ford is justifying his actions with the size of his mob, which is not how a democracy works. In fact, it’s quite the opposite.’
      https://looniepolitics.com/doug-ford-needs-to-learn-the-difference-between-populism-and-democracy/

      Reply
    • Sam Gunsch

      September 12th, 2018

      Lougheed vs. today’s shameful imposters of ‘conservative leaders’ acting like tin-pots, claiming to be democrats.
      ====

      Tom Parkin @Tom_Parkin_20m20 minutes ago

      Lougheed: “If a legislature wishes to take issue with the Court’s determination (by using notwithstanding), it too should be required to consider whether the limit is one that is justifiable in a free and democratic society.”

      Settling grudges doesn’t fit
      ======

      excerpt from here:
      https://www.bac-lac.gc.ca/eng/discover/politics-government/building-just-society/Pages/honourable-peter-lougheed.aspx

      =============

      More Lougheed: ‘The purpose of the override is to provide an opportunity for the responsible and accountable public discussion of rights issues, and this might be undermined if legislators are free to use the override without open discussion and deliberation of the specifics of its use. There is little room to doubt that, when defying the Supreme Court, as well as overriding a pronounced right, a legislature should consider the importance of the right involved, the objective of the stricken legislation, the availability of other, less intrusive, means of reaching the same policy objective, and a host of other issues. It should not only be the responsibility of the Courts to determine whether a limit is reasonable or demonstrably justifiable in a free and democratic society. If a legislature wishes to take issue with the Court’s determination, it too should be required to consider whether the limit is one that is justifiable in a free and democratic society.’

      Reply
  3. Lars

    September 12th, 2018

    I suppose that we should be thankful here in Alberta that Klein was not premier during an age of creeping autocracy. It would have validated him.

    Reply
  4. David

    September 12th, 2018

    I am not sure that Mr. Ford’s somewhat capricious use of the not withstanding clause will lead to a rush of other premiers doing the same, anymore than I would expect if Mr. Ford jumped off a cliff other premiers would rush to take up cliff diving too.

    I think how Ontario voters react to Mr. Ford’s actions will govern how others react. If this action leads to increased popularity or does not hurt his popularity at all, perhaps other premiers will be less fearful to use it. However, even if that is the case, I am sure they will be mindful that their provinces are not Ontario and they certainly are not Mr. Ford.

    I don’t think Kenney here in Alberta will be quite as eager to embrace the not withstanding clause as Ford is. While Kenney is more of a rabid social conservative than Ford, he is also more cautious and fundamentally an establishment politician, not really a populist like Ford. As much as Conservative politicians like to slam the courts, in reality they often provide all politicians with a convenient excuse not to deal with contentious matters. Now Ford’s recent careless action may make that response more difficult, but it may often still remain politically the better choice.

    I think ironically in the end Ford’s use of such a powerful and loaded weapon as the not withstanding clause to deal with an issue that does not seem to be of great importance to anyone but him may backfire. People who use hand grenades to kill flies may succeed, but they end up looking silly and may cause considerable damage to their own property in the process.

    Reply
  5. Scotty on Denman

    September 12th, 2018

    You kept me up all night reading up on the ‘override clause’ (as it was originally called). I’m a stick with my original prognosis that someone, anyone, may immediately seek injunction the moment this new, override-impregnated piece of legislation is passed (it’s being tabled at Queen’s Park as I write). The new legislation is the original law (reducing the number of Toronto city council seats) that was struck down by the court, only now with the override clause stitched in. I’m guessing (not being a lawyer or constitutional law expert) that a new judge (this wouldn’t be an appeal of the first judge’s decision because their was no error in law there) would have to find that D’ohFo’s use of the override clause is unlawful in the circumstance. “In the circumstance” is the vital point.

    D’ohFo is overtly trying to make this a matter of principle: that elected legislatures trump appointed judges; but of course we see that, less overtly, he has an ulterior motive—at least it appears that way— to beggar his civic opponents and favour his civic allies. But a judge, I think, would reject that this is about an ostensible principle to determine which branch of government trumps the other in all cases, forever more. It isn’t because jurisdiction and authority aren’t the question, timing is.

    It should matter that D’ohFo did squat with respect forewarning citizens of the partisan surgery he wants to impose upon their civic government. Toronto is the nation’s fifth-biggest jurisdiction, after all—should there not have been impartial commissions to ensure the setting of new ward boundaries is done impeccably without partisan conflict or influence? D’ohFo seems to be saying he understands (heh,…) the override clause to mean he can dispense with these democratic safeguards as a matter of principle. I should think a judge would order these protocols be done and done properly to ensure that Toronto citizens’ democratic rights are maintained. Since there isn’t enough time to get these done before the civic election, a judge would be correct in ordering an injunction which would effectively allow the election to proceed under the status quo. Only after the election could the provincial government perform the requisite protocols before adjusting the number of seats and their respective ward boundaries—well before citizens gear up for the next civic election.

    A judge would write, I presume, that democratic rights would be offended by effectively re-arranging the goalposts while citizens have already invested time, money and ideas to candidates and wards as they currently exist. The injunction would not be addressing any notions about parliamentary or judicial sovereignty, rather it would emphasize what the original bill was about (reducing the number of civic seats) and the proper way to do it (as in, not D’ohFo’s default way: use of the override clause), thus avoiding the separate-powers question D’ohFo that wants to make, and even the express appropriateness of the override clause. In short, the judge should, IMHO, write that the clause cannot be used in place of ordinary, recognized and constitutionally vetted protocols for redrawing electoral boundaries—which D’ohFo also inappropriately suggests the override clause should apply to. He would be right if anybody was saying his government never, ever has authority to adjust governments it charters. But nobody’s saying that, only that his timing is wrong—in the legal case—while, purely as political opinion, many Torontonians suspect his intentions dishonourable.

    The very fact that D’ohFo is trying to implement the law precisely when the civic campaign is underway says he’s trying to use the override clause for ulterior purpose, that is, inappropriately. He did have the opportunity to do it correctly by authorizing the Ontario Electoral Office to undertake proper protocols in good time before civic electors had organized campaigns—but he didn’t bother. Allowing his desired misuse of the override would be tantamount to allowing it, thenceforth, to be an excuse for not getting requisite homework done. “Your Humour, the Doug ate my homiework…”.

    It’s either about that or not about civic governance at all—and D’ohFo is doubling down on this ulterior, ultra partisan position that judges are “lousy” and D’oh-hic-Fo Nation-urp is supreme. But nobody’s challenging Ontario’s authority over its own charter governments. That, I think, would be a judge’s deft dodge of D’ohFo’s ‘populist’ ploy: because there is absolutely nothing stopping him from reducing the number of seats properly, not even the court (which struck down his attempt to do it improperly), then even the arcane and ulterior case he’s trying to make this dust-up into is an inappropriate use of the override.

    D’ohFo’s manoeuvring is neither deft nor clever; it is hamhanded and hackneyed. Hopefully a judge will so find—perhaps in a few more words.

    Of course if I really want to find out what’s happening, I’ll phone back home (Ontario) and see how that buck-a-beer’s informing the masses.

    Reply
  6. Bill Malcolm

    September 12th, 2018

    Judging by the reponses of Conservatives when Ford’s move was first rejected, squawk, bleat, How can a judge overrule a democratically elected premier, splutter, whine. Well, there is the matter of the rule of law or you’ll get some lout with no education or morals thinking that the mere fact that they were elected means that anything they want to do is quite OK, all the while providing specious logic claiming all this sort of nonsense was part of their election platform and should be obvious even to people re-reading the same and unable to find it. So when Ford trots out the Notwithstanding Clause with a smirk, the handclaps from the right ring far and wide. Now we know how fascists got into power earlier last century – dimbulbs voted in despots, ignorant of their system of democratic government and how it’s supposed to work, and based on deep, thorough, and thoughtful analysis lasting all of ten seconds in the maelstroms of their minds, decided that shooting themselves in the foot was a crackerjack idea. That’s how ‘Murica voted in Trump too, pinned on such snappy slogans as draining the swamp.

    If ever there was a case for better public education, this chapter in Canada’s history shows why. As a first step, they could start emphasizing high school Civics in Ontario. Fat chance with Dougie at the helm! Many people I know can barely comprehend the difference between provincial and federal governments; it’s all just government to them. And as for division of powers between executive, legislative and judicial branches of government – what?

    Reply
  7. Hana Razga

    September 13th, 2018

    …and where is Caroline Mulroney or Christine Elliot, the ostensibly more moderate PC ministers?

    Reply

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