2018, Politics, Society

Ontario and the Notwithstanding Clause

There are many things to like about Canada’s Charter of Rights and Freedoms, a more inclusive bill of rights than, say, the American one. But there’s always been a crucial flaw, the “Notwithstanding Clause.”

This clause grants any provincial government the right to override the Charter in a specific instance for a specific period of time. That might seem like a ridiculous thing to include in a bill of rights, and you’d be right, but it exists because of the political compromise that created the Charter. It was put in to get Quebec’s agreement.

To date, it has barely been used outside of Quebec. It has never been used in Ontario.

That ends tonight.

Tonight, the Ontario provincial government will use the
Notwithstanding Clause to push through a piece of legislation that was partially repealed by the Superior Court of Ontario for violating the Charter.

The legislation is pretty inconsequential to everyone outside of Toronto; it reduces the size of the Toronto City Council, supposedly to save money. However, there are a few problems with it:

  • The Ontario PC Party did not campaign on this piece of legislation, despite their claims that they have a democratic mandate to change the size of Toronto’s city council. (How can you have a democratic mandate for something you didn’t run on?)
  • It was passed during a Toronto municipal election, disrupting that election.
  • It was passed during a Toronto municipal election, meaning both that whatever money the provincial government claims they’ll be saving the city is not actually saved because the city had to plan a new election.
  • The Superior Court of Ontario found that, because the legislation was passed during an actual election, it violates the Charter. (The decision, which you can definitely quibble with, noted that the legislation would not have violated the Charter had they just waited to pass it until after the election.)

One wonders why the legislation was passed at all, given that the number of councilors in Toronto was established by an in-depth report about democracy in Toronto. 

One also wonders, ‘what’s the rush?’

The answer is, of course, that Doug Ford hates the City Council. That’s why he did this. And the reason he did it now is because he’s worried he won’t be around for the next municipal election.

So he’s going to violate the norm of never using the Notwithstanding Clause in Ontario so that he can get some revenge. And his party is going along with him because… well, it’s Canada and that’s what you do. You don’t vote with your principles, you vote how your leader tells you to.

And so now we are going to live in a province where it is perfectly okay to use the Notwithstanding Clause for any reason whatsoever. 

Thanks Doug.

As an aside, I want to say that this is a good reminder why civics education is important. It’s obvious from the Premier’s press conference that he doesn’t understand a thing about how the Canadian system of government works. He appears to literally believe that an election gives him the right to do anything which is, obviously, not how a liberal democracy works. There was no civics education when I was in school and I assume that there wasn’t when he was in school. I wish he and his colleagues understood what they are doing but I have no reason to believe they do.

Emails I sent to the PC Caucus

The first one was sent on the 11th, when I first learned of their intention use the Notwithstanding Clause.

“Hi there

My name is Riley and I’m from Toronto. I am writing you about the vote on the use of the Notwithstanding Clause. Now your staffer reading this is probably thinking “What do we care about what someone from Toronto thinks?” They’re right. I will never vote for or against you.  But I’m not writing you about Toronto. Frankly, I don’t care about the ward boundaries much.

I do care about our democracy and its norms. The Premier is ready to violate a well-established democratic norm for a petty beef that he didn’t run on, that you didn’t run on, and that nobody cares about, beyond a bunch of people in Toronto. Aren’t you tired of Toronto being the centre of everything all the time? 

The Notwithstanding Clause has never been used by the province of Ontario. Never. Not even by Wynne, whom you campaigned against because of a lack of accountability. Premier Ford is going to use the Notwithstanding Clause so that he can win a beef that nobody but he and Torontonians care about. He’s going to break with decades of democratic norms because he got a little mad. He wants you to go along with him.
I don’t think you should.

“The Progressive Conservatives stand for accountability. Conservatives stand for conservative policies. Disrupting an election in progress for the purposes of revenge doesn’t fit in with the image the party is trying to project. Nor does using a never-used provision to override a court ruling. That’s not very conservative.

“You have two opportunities here, as I see it:

“First, you have the opportunity to do the right thing and prevent an egregious abuse of power. That should really be the end of my email. You should just do the right thing.

“But you have a second opportunity. We all known Ford is a problem. You have no idea what he’s going to do and you have no idea how much damage he’s going to do to the party before he’s done with it. How do you feel about 2022 the way this summer has been going?

“But a constrained Ford, who knows who he’s responsible to – maybe he’s stable enough for the PCs to win another election. A vote in favour of democratic norms and against the Premier’s whims will let him know who’s boss: the caucus. No more picking pointless fights with the City of Toronto.
I ask that you speak to your fellow MPPs and realize that the caucus is more powerful than the Premier. Ford was elected because everyone hates Wynne. If he carries on like this, the PCs will lose the next election because everyone will hate Ford.

“I hope you do the right thing.

“Thank you for your time.”

And, an angrier one sent this morning:

“Hi,

“The decision to reconvene tonight at midnight to use the Notwithstanding Clause for the first time in the history of Ontario leaves a resident of Ontario such as myself with two distinct impressions:

  1. You’re a coward
  2. You don’t understand how the Canadian system of government works.

“Avoiding public protests is nothing short of cowardly. You claim your responsive and accountable to Ontarians but you are violating a decades long norm in the middle of the night. You should be very proud of yourself.
Canada is not just a democracy, it’s a liberal democracy; it is a democracy with checks and balances and institutions and, perhaps most importantly, norms that safeguard against the tyranny of the majority. From Ford’s comments about judges, and from other public statements, it sure seems like you or at least your party do not understand the “liberal” half of liberal democracy. Just because you won the election doesn’t mean you get to do whatever you want, even if it’s illegal. 

“The Notwithstanding Clause is a very regrettable part of the Charter that effectively renders it null and void. Past Ontario governments have recognized this and decided to never, ever use it. This is a norm that has safeguarded Ontarians from abuses of power by their provincial government. The use of the Notwithstanding Clause, especially in an instance of such little importance, sets a dangerous precedent. What will you use it for next? What will the Liberals or the NDP use it for when they replace you in 2022 because you can’t figure out how to run the province?

“Pass this legislation again after the election. The judge made it clear that was the problem. What is the rush?

“This abuse of power is unprecedented in the history of the Charter in Ontario. If you use the Notwithstanding Clause to force your legislation through, I will never vote for a PC candidate ever again in my life.

“Sincerely,

“Riley Haas”

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