Looks like Ontario is in for another relaxing week of Doug Ford’s fine government. This time, the premier has decided to take everyone on an exciting adventure in constitutional law. (Spoiler: there is no little man behind the curtain; that big laughing head on the screen is the real wizard. He can do whatever he wants, and he’s definitely not handing out brains.)
Yesterday, Superior Court of Ontario Justice Edward Belobaba released his ruling on Bill 5, Ford’s plan to slash Toronto’s city council in half while they’re in the middle of a municipal election. The judge was not impressed. In an idiosyncratic ruling, Belobaba found that the province’s proposal to rearrange the playing field during an election violates section 2(b) of the Charter of Rights and Freedoms by limiting the free expression of Torontonian voters. Ford responded to the ruling with shock and disappointment that a judge dare tell him what to do, and vowed to invoke the infamous Notwithstanding Clause of the constitution to push his plans through anyway.
Nobody likes poor section 33. The “notwithstanding clause” was a federal-provincial compromise made during the Kitchen Accord in 1981, an 11th-hour deal to get (almost) all the provinces on board with the new constitution. It allows provincial (or federal) legislatures to override some sections of the Charter on an interim basis for up to five years.
It’s a constitutional killswitch that’s only been invoked a handful of times: Saskatchewan in 1986 to legislate strikers back to work; Quebec in 1988 to skirt federal bilingualism laws (and also whenever René Lévesque was in a mood); and Alberta in 2000, to try and preemptively block federal same-sex marriage laws, although the Supreme Court of Canada later ruled Alberta didn’t have the jurisdiction to define marriage so s.33 never came into effect. Saskatchewan also used it in May 2018 to override a court’s decision that the province couldn’t provide funding to non-Catholic students attending Catholic schools.
Section 33 is the bastard child born of Canada’s shotgun marriage between British parliamentarianism and American constitutionalism. The post-1982 tension between the relatively new power of appointed judges to interpret/enforce/overturn the laws crafted by elected politicians was never resolved, so the notwithstanding clause exists as a kind of failsafe for parliamentary supremacy. It is a reminder that the Canadian political system got an incomplete renovation 36 years ago and the only reason the whole thing hasn’t collapsed yet is because everyone’s been reasonably careful not to rock the casbah—the odd sovereignty referendum aside.
Given its history, you can appreciate why the Notwithstanding Clause has a reputation as an illiberal cheat code. Its use has become taboo, especially as the Charter mentality became more entrenched across Canadian society. It enables politicians to override fundamental freedoms (section 2), legal rights (sections 7-14), and equality rights (section 15). You would like to hope those kind of drastic measures would be reserved for real problems and not just because Doug Ford wants to fuck up Toronto.
All told, it probably shouldn’t have even come to this; as Emmett Macfarlane points out in Maclean’s, Belobaba’s ruling that Bill 5 violated Torontonians’ Charter rights appears legally incoherent. Section 92(8) of the constitution gives explicit sanction for “the Legislature [to] exclusively make Laws related to Matters concerning… Municipal Institutions in the Province.” While redrawing municipal boundaries amidst an election is despicable and unfair, it is well within the provincial government’s right. Shoehorning Bill 5 into a Charter violation is arguably an overreach, and counterproductive insofar as it opens the ruling up to successful appeal. This is not to say Ford’s plan is good, just that it’s likely constitutionally kosher. As fucked up as his ends are, Ford seems to be using the notwithstanding clause correctly.
Subsuming municipalities entirely to the whims and dictates of provincial governments feels, in 2018, like a major constitutional shortcoming. The only real and lasting solution to this would be to spell out the specific rights, duties, and powers of municipalities in the constitution, but that requires reopening the blasted thing. The Canadian constitution is like the Ark of the Covenant: keep the lid on it at all times or there’s a good chance everyone involved is going to die in horrible, face-melting pain.
But the real problem isn’t the much maligned and misunderstood section 33. The problem is Doug Ford. The premier is indifferent and/or ignorant about how the judiciary works and he has made it clear that there is no power in heaven or under it that will keep him from delivering on his mandate “for the people.” That the specifics of this “mandate” are made up on the fly is irrelevant; the surprise was part of the package deal. Ford’s mandate is action. He is there to fuck things up, and deliver “taxpayer savings” with theatrical bombast for all his supporters who prefer to see the heads actually roll than to read the bloodless figures behind budget cuts. He was democratically elected by 2.3 million people to own the libs and he’s going to do it whatever way he can. The only plan is a show of power—the cities, the commentators, the cucks, the constitution and the rest be damned.
So relax, Ontario. It’ll be fine. You’ve only got, what, four more years of this?
Follow Drew Brown on Twitter.
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