By Ray Rivers
September 16th, 2018
BURLINGTON, ON
It was a disgraceful display, such petulance, like a spoiled child. No I’m not talking about the unruly New Democrats who got booted out of Queen’s Park for protesting the other day. That was pretty poor behaviour alright, making noise, banging their desks like trained seals clapping flippers before a crowd in an aquarium.
But the really disgraceful behaviour came from that vengeful school yard bully we elected as our Premier, determined to roll over the rights of the people of Toronto.
We call it liberal democracy – government based on the recognition of individual rights and freedoms and the rule of law. It’s not a partisan title and all of our political parties claim to subscribe to a classical liberal philosophy, and the Conservatives most of all. Democracy, but with due regard for the rights of the individual.
Canada’s provincial premiers rule with virtually no checks on the power they wield, so long as they control a majority of the seats in parliament. Despite the debates, committees, and opposition delaying tactics they will pass pretty much every bill they introduce. More than a guide, the constitution and charter of rights are there to constrain the near absolute power of a majority government from trampling over the rights of others.
Ontario Premier Doug Ford
And trampling is what Doug Ford is doing with his 13th hour intervention into the municipal election in Toronto. That was the verdict of recent Superior Court justice, a judge who knows more than a little about matters constitutional. Mr. Ford has confirmed this by moving to override the court decision with the so-called ‘notwithstanding clause’, Section 33 of the constitution. His legal appeal of the ruling is effectively moot, though, since his intention is clear – he doesn’t care about those people or, their rights.
The notwithstanding clause is unique to Canadian politics. Americans have no such provision in their constitution, for example, and so the courts are the final authority there. Only Saskatchewan and Quebec have ever invoked the clause – a couple of times each, a couple of decades ago. There is a 5 year sunset clause and no jurisdiction has re-authorized this extraordinary constitutional provision.
The architects of our constitution have felt the need to weigh in. Jean Chretien, Bill Davis, and even Brian Mulroney, father of Ontario’s Attorney General, have condemned Ford’s plans. They are clear, Section 33 should never be used – but if it is, there had better be a pretty good reason.
A military invasion, an insurrection or something of that ilk comes to mind. Quebec once over-rode the rights of non-francophone small businesses by demanding the prominence of French in commercial signage. It argued that this would help it in its efforts to preserve the use of French in the province, and it probably has.
Toronto city Councillor Doug Ford (L) and his brother, the late Rob Ford
But we all know why Ford is ramming though his unconstitutional Toronto council seating plan – It’s personal. The Ford brothers felt offended that not every crazy idea they had was accepted by council when the dynamic duo roamed City Hall. And then Ford lost out on the last mayor’s race to John Tory. Oh and his ferris wheel idea crashed big time.
And it’s political too. Using the federal ridings as ward boundaries runs roughshod over the various smaller communities. So he believes it will serve to muffle those lefties who oppose his hidden agenda, which will be revealed in due course. Seriously, life would be easier for him if those potential opponents were out of the way.
Toronto Mayor John Tory with Ontario Premier Doug Ford. The body language says it all.
After all Ford has mused about moving some city services, like transit, to Queen’s Park, why not all of city government? Who says you can’t be mayor and premier in one? Eat your heart out John Tory. First Ford took his job as party leader and then premier. Now he’ll push Tory out of the mayor’s chair and run the council himself, the playpen he really covets.
We have no reason to believe that Ford is being purely vindictive, though there is considerable poison on his tongue when he speaks of the lefty councillors. And there is no question that the province has the authority to manage the size and operation of city councils. But his timing, in the middle of an election is more than a little problematic, unless his bigger ambition is in play.
Ford would be more credible if only he had a single shred of evidence that fewer politicians would make better government. When the judge asked for proof that a smaller city council would be more effective, he was met with silence from the government side…’crickets’ he called it. Ford doesn’t need analysis; his touchstone is his ideology. Fewer politicians good, evidence-based decision making bad. He doesn’t care that dinner is on the table, he wants his dessert now.
What’s not child’s play is how Ford Nation is also changing the rules in order to ram legislation through the legislature without the traditional kind of debate and due process we’re used to. That means that the only official opposition party, the NDP, will be virtually powerless to slow down or amend – even if they can’t stop poorly conceived legislation, like the one slashing Toronto’s council in half.
The wife
The sycophant
Toronto had spent four years carefully considering its expanded ward structure and then Ford trashed all of that work in a heartbeat based on his gut feel. He doesn’t need analysis to justify his actions and he doesn’t need some unelected judge, appointed by the federal government, to tell him what is right and wrong. After all he was elected for a four year term by 40 percent of the voters in the last election.
Ray Rivers writes regularly on both federal and provincial politics, applying his more than 25 years as a federal bureaucrat to his thinking. Rivers was once a candidate for provincial office in Burlington. He was the founder of the Burlington citizen committee on sustainability at a time when climate warming was a hotly debated subject. Ray has a post graduate degree in economics that he earned at the University of Ottawa. Tweet @rayzrivers
Background links:
Ford’s Bill – Canadian Charter of Rights – Undermining Canada’s Constitution –
Amnesty Comment – Globe Editorial – Andrew Coyne –
Davis Comment – Consolidating Power –
Stephen, thanks for your comment but my understanding is that Alberta only discussed using Section 33 and that Yukon never actually invoked it as the issue was resolved. interestingly certain matters cannot be overridden, such as… section 6 mobility rights and democratic rights.
Actually Ray, invoking the notwithstanding clause hasn’t been all that rare. It has been used 15 times since 1982…by Quebec, Saskatchewan, Alberta and the Yukon.
Certainly, Ford’s rationale for his actions, along with utilizing the NWC, are certainly open for debate. There’s little doubt that he has the constitutional authority to do what he did, and had he appealed the Court’s decision he would probably have won. The timing so close to a municipal election is terrible and confusing for both candidates and electors, and the business rationale and purported cost savings and efficiencies remain unclear. Despite Ford’s claims that this was an election issue I don’t recall it ever being discussed during the provincial election.
The real reason for doing this is likely based on political motives. Ford clearly wants to drive a wedge into the NDP, and what better way of doing that then carving up inner city wards, gerrymandering boundaries, and pitting incumbent against other incumbents. The man is clever if not manipulative. Time will tell whether it yields the kind of improvements Ford claims. Personally, I suspect not. Real reform requires careful thought, evidence based decision-making and in-depth analysis, but sadly, that’s not what this process is really about.
Ray,
Remember, the Liberal gov’t did not change the voting act as they promised in their election platform.
As for Ford……….ugh………..but so was Wynn
Good discussion but let me try again. I am assuming this judge has made a correct decision in this case, as he apparently is knowledgeable on the Constitution.
As I see it a provincial premier could invoke the notwithstanding clause to over-ride a court’s decision on constitutionality if he were convinced that what he/she is doing is of such great importance that on balance it warrants violating the rights of the people affected by it. That is how I saw what Robert Bourassa did with French language signs.
Is the matter of cutting Toronto council’s size of such importance that it is worth violating our Charter? Does Ford even care about that? How can he call himself the premier of all the people when he tramples willy nilly over their fundamental right to freedom of expression.
Section 33 is an escape clause. Ford has said he’d use this Section 33 every time he is found to be unconstitutional. Does that mean he has no regard for the Constitution and Charter or the fundamental rights of Ontario residents? Will he just do what he wants regardless our fundamental rule of law – the constitution – and the courts which weigh in on it.
The NWC clause is, section 33 of the Canadian Constitution making it’s use entirely “Constitutional.”
It’s probably why Bourassa used nearly 1/2 a dozen times for French language only laws, but whatever.
Former Premier and Constitutional Architect Alumnus Brian Peckford is on the record as saying its use in this case is ‘Exactly”, why its there.
In the future the next Liberal incarnation can campaign on repeal of this wrong and win a landslide and it will be Sunny Ways all over again.
You’re welcome
Simply stating that the Notwithstanding Clause exists does not mean that it should be used.
Referencing Brian Peckford’s approval of its use and neglecting to mention the other Constitutional experts and legal professionals advising against it is selective. [https://globalnews.ca/news/4456164/400-legal-professionals-oppose-ontarios-use-of-notwithstanding-clause/]
Three people, including Chretien, who negotiated to include the Notwithstanding Clause also disagree with its use here [https://www.macleans.ca/politics/ottawa/chretien-romanow-and-mcmurtry-attack-fords-use-of-the-notwithstanding-clause/]
Let’s not be selective with who is praising it or condemning it.
If it were so normal to implement, why has Ontario never done so before? Referencing a different province does not justify Ontario’s use of it, and certainly not in a case such as this, where Ford’s poor timing and fixation are the only reason this is happening today and not in a few months.
To combat a non-partisan judicial system with “well, I was elected” [with 40% of the vote…] and “I have a mandate” [despite having little to no platform prior to election and certainly not including municipal affairs within it] is bone-headed.
Why is Ford not focusing on provincial affairs, such as unemployment or even a bloated provincial government? Why is he not focused on updating the Sex Ed Curriculum he so promptly repealed? He has enough court battles going on that the perceived “savings” to Torontonians having a reduced council size still won’t make up for the provincial money spent on court battles re: sex ed, Tesla, etc. How many fights will he pick until he can win one?
We need to be less casual about Doug Ford using the Notwithstanding Clause here. To use it in a circumstance that absolutely does not warrant it is a bad sign of how he will deal with other judges who disagree with him.
Phillip – thanks for your question and it is a really good one. In fact the Trudeau Liberals got less than 40% of the in the last federal election. I’ll go out on a limb though and say that if we had a preferential ballot – where second choices counted when no party has a win as first choice – Trudeau would have got closer to 60% on second ballot than his 39.47%.
And if we had a preferential ballot in Ontario the NDP would likely have won with almost 60% of the vote, since they would have been a good second choice for the provincial Liberals in that last election, where so many people wanted change.
Ray, you seem obsessed when you point out that a Conservative won with only 40% of the vote in the last election. But I didn’t see your outrage when the Libs won with similar numbers. Curious!?!?
By the way, Ford couldn’t do worse running the City of Toronto than Ford and his bumbling council have been.