Notwithstanding. . .

“Yes!” I said jubilantly to myself on Monday morning, as I scrolled through the news on my phone in my physiotherapist’s waiting room. My enthusiasm was directed at Superior Court Justice Belobaba’s decision to overturn the provincial government’s now-infamous Bill 5: the Better Local Government Act which, as we all know, would have cut the number of city council seats in Toronto from 47 to 25.

I had a little bounce in my step for the next couple of hours. Critical as I often am of it, I like the law, especially when it works to support true democracy and protect people. This decision did just that, in the face of a bad law, passed by a feckless and vindictive politician who has it in for those in the present Toronto municipal government who he deems to have disrespected him and/or his brother Rob during their tenures as municipal politicians. The legislation is a dig at those Ford views as “left wing,” a phrase that in his lexicon means anyone who does not agree with him.

However, the bounce had left my step by early afternoon, when my next news check told me that Doug Ford, who surely had never heard the word before, had invoked the notwithstanding clause of the Charter of Rights and Freedoms.  

It’s a big deal

I had to refresh my memory about the notwithstanding clause on Monday afternoon. It rang a faint bell in the back of my memory; something from a constitutional law course I took in first-year law school but had not thought about since.

A few minutes of research verified my shaky memory: the notwithstanding clause is a very big deal.

Put simply, Section 33 allows a government, federal or provincial, to declare that a law — in this case Bill 5 — applies temporarily (for no more than five years), even though (“notwithstanding”) it may violate the Charter. It is a way for government to override the judiciary, which is exactly how it is playing out in Ontario.

It has never been used by the federal government and, until Ford’s announcement Monday, had only been used by two provinces: Saskatchewan and Quebec.

Just what is going on?

Justice Belobaba ruled that the legislation to reduce the number of wards in the City of Toronto was unconstitutional because of its timing. The government, he said, was free to make such changes, but not during an election campaign.

This opened the door for Ford to make his decision to invoke Section 33. He recalled the legislature for an urgent sitting on Wednesday. It proved to be a tumultuous and noisy day at Queen’s Park, bursting with democracy, as citizens and politicians alike refused to line up behind Ford’s plan.

Citizens were forcibly ejected from the visitors’ gallery during question period, some of them in restraints, after voicing their opinions about the government’s intentions. Others demonstrated noisily outside the building. Members of the NDP – Ontario’s official opposition – were removed from the legislature one by one by the Sergeant at Arms because of the ruckus they raised when the Bill was introduced.

Given the size of the Conservative majority, it is no surprise that the Bill — now renumbered and renamed as Bill 31, the Efficient Local Government Act — is moving steadily through the law-making process, but opposition continues.

Toronto City Council held a special, closed-door meeting on Thursday, which ended with a vote in favour of taking the provincial government back to court to oppose Bill 31. Whether or not this will be successful is, of course, unknown at this point, but it will certainly slow things down — perhaps to the extent that an election on October 22 is no longer a viable option.

Opposition from all quarters

A long-time outspoken critic of the notwithstanding clause is former Progressive Conservative Prime Minister Brian Mulroney, the father of Ontario’s Attorney General, Caroline Mulroney. While he has taken pains to note that he is not commenting on the present situation in this province, he has chosen this week to reiterate publicly his concerns about Section 33.

On Wednesday, highly respected retired Conservative Premier of Ontario Bill Davis, one of the premiers involved in developing the notwithstanding clause in the 1980s, added his voice — usually silent on matters of current government policy or action —  to the growing chorus of those speaking out against Ford’s move.

“The notwithstanding provision has, understandably, rarely been used, because of the primacy of the Charter of Rights and Freedoms for all Canadians. That it might now be used regularly to assert the dominance of any government or elected politician over the rule of law or the legitimate jurisdiction of our courts of law was never anticipated or agreed to.”

Almost no one claims that the size of Toronto’s city council – as important as that is to the citizens (and politicians) of Toronto – is such an issue.

On Thursday, Amnesty International strongly criticized the provincial government for its use of the notwithstanding clause, the first time it has ever condemned any level of government in Canada:

“No government in Canada should take the contemptuous step of disregard for the Charter of Rights that the notwithstanding clause offers them. To do so in a case involving the fundamental freedom of expression in a context in which core principles around elections and the underpinnings of our democracy are at stake is particularly disgraceful.”

Caroline Mulroney has come under particular fire for not standing up to Ford. As Martin Regg Cohn wrote in the Star:

“[I]nstead of distinguishing herself as a judicious defender of law and order, she is discrediting herself as the enabler of an injudicious premier. Instead of comporting herself as chief law officer of the crown, she is conflating her role with that of Ford factotum.”

Even federal politicians have joined the fray: 25 Liberal MPs from Toronto, including five Cabinet Ministers, have signed a letter calling on all MPPs to:

“defeat Ford’s legislation. In particular, we believe MPPs elected in Toronto have a responsibility to defend the city, its democratic institutions and the rights of citizens to a free and fair municipal election.”

While Prime Minister Trudeau has said he won’t weigh in on this issue, he has commended the members of his caucus who wrote and signed this letter.

Even bigger concerns

Problematic as Ford’s use of Section 33 in this instance is, there are bigger concerns. His disdainful dismissal of Justice Belobaba’s ruling is deeply troubling:

“I was elected. The judge was appointed. A democratically elected government, trying to be shut down by the courts . . . that concerns me more than anything. I’m sitting here handcuffed, with a piece of the tape over my mouth, watching what I say.”

He has also declared that he “won’t be shy” about using the notwithstanding clause in the future, which is a chilling indication of what may lie ahead in Ontario.

As Carissima Mathen, vice-dean of the University of Ottawa Faculty of Law, wrote in a Globe and Mail opinion piece on Wednesday:

“In [invoking the notwithstanding clause], the Premier raised real concerns about his government’s respect for the rule of law. He appeared to question the idea that everyone, elected officials and their governments included, is accountable to the law. There is so much wrong here one barely knows where to begin.”

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