Columnists
Notwithstanding Doug Ford
My goodness, Premier Doug Ford has certainly made himself a meal of his determination to cut down the size of Toronto city council immediately. It makes the fight over the size of council in the County seem like a church tea.
As I write this, Mr. Ford’s forces have just finished second reading of the Efficient Local Government Act (formerly the Better Local Government Act). The government expects the new Bill to go to third reading and receive royal assent on Thursday. Candidates in the wards that result from the legislative change would then have a few days to file nomination papers for election in a 25-riding city, not a 47-riding city.
The original Bill was set aside last Monday by Justice Edward Belobaba of the Ontario Superior Court. He found that it violated voters’ and candidates’ rights under the Canadian Charter of Rights and Freedoms, in particular freedom of expression, because it both came into effect during an existing election campaign and almost doubled the size of constituencies. The government is appealing that decision.
The new Bill is the original Bill with a kicker. It invokes the “notwithstanding” clause of the Charter. That clause says that a parliament can expressly declare its legislation to be effective notwithstanding the fact that it infringes on the fundamental freedoms or legal or equality rights of Canadians, provided the legislation is renewed every five years.
The Charter, including the notwithstanding clause, came into force in April, 1982 as a part of Pierre Trudeau’s work to patriate the Canadian constitution. I can remember attending on Parliament Hill the day the Queen signed the deal to make it official. (My wife remembers it even more vividly, having been six months pregnant at the time and about to black out from standing in the crush). Mr. Trudeau was a proud man that day. Prior to the Charter, a provincial government could, by legislation, do pretty well what it wanted, unless it was traipsing into the jurisdiction of the federal government.
People are now upset at the Ford government for invoking the notwithstanding clause over a mundane piece of legislation. Old warhorses are being trotted out to remind us that the clause was a political compromise in the first place and that it was intended only for exceptional use.
Doug Ford has defended his actions by declaring “I was elected. The judge was appointed.” He has essentially given notice that he might just throw the notwithstanding clause into every piece of legislation he initiates, because that dichotomy between election and appointment will always exist and he might as well avoid the prospect of judges striking down his legislation by taking them out of the picture at the starting gate.
Will Mr. Ford’s willingness to resort to the notwithstanding clause so readily cheapen the Charter? While I don’t consider that stance very sporting, I don’t think so. The Charter may have begun life seeming to be a set of platitudes on paper; but its judicial application has been deep and broad. It is like a tree that has grown to maturity. And people should be able to discern that it is the government, not the Charter, that is being cheapened, and they will hold the government accountable for its lack of restraint at the appropriate time.
In my view, the notwithstanding clause is appropriately in the Charter. It reflects the primacy of the legislature – and the voter. It also permits a government to rein in a judiciary that may, in the process of putting flesh on the bones of rights, set obligations on government that it can’t live with, either because of their administrative complexity or because there are other governmental financial priorities. The notwithstanding clause is a useful trump card for the legislator who is prepared to be held accountable.
Whether Mr. Ford has played that card responsibly is another matter: the ‘crisis’ that supposedly warrants the imposition of the notwithstanding clause is entirely of his own making, in particular from his insistence that the change be imposed on Toronto in the middle of an election campaign. Maybe he should have practised first with some legislation affecting some small outpost like, say, the County. Then again, maybe not.
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