COMMENTARY: Doug Ford dropped a constitutional bomb by invoking notwithstanding clause
This week, Ontario lost its constitutional virginity. It joined the ranks of Saskatchewan, Alberta and Quebec, provinces which have all seen their government invoke Section 33 of the Constitution, the “notwithstanding clause,” to override court judgments with which they disagreed.
Previous cases involved a diverse set of issues, from labour disputes to language laws, to school funding. In all of these, governments considered their actions carefully, risking political capital to protect what they considered to be the public interest, and in some instances, the will of the voters.
Ontario faced a different situation. The provincial government had decided to redraw the Toronto electoral map and reduce the number of city councillors from 47 to 25, along the lines of federal and municipal districts, four months ahead of a municipal election.
The policy had not been directly put to the people during the recent provincial election, but the government had a solid majority, and a mandate to reduce government waste.
WATCH ABOVE: Trudeau says government disappointed in Ford using notwithstanding clause
Premier Doug Ford claimed the downsizing would save taxpayers $20 million and streamline proceedings of Toronto City Council. The province also had the legal right to reframe municipal elections, since cities are considered “creatures of the province” under existing law.
Not surprisingly, many candidates, some of whom had been running for several months under the old boundaries, objected, and took the province to court.
With the election looming, the judgment was by necessity a rushed affair: Justice Edward Belobaba admitted that “Given the pressing need for a timely decision, I will forego a detailed analysis of every legal issue raised in this proceeding… [and] will focus primarily on the issues… that, in my view are the most determinative.”
Belobaba went on to describe the matter as “unprecedented,” “radically changing the number and size of a city’s electoral districts in the middle of the city’s election campaign.”
The judge concluded that, “The province has clearly crossed the line,” and interfered with the freedom of expression of candidates and voters alike. He also found that the law was not saved under Section 1 of the Charter, due to lack of urgency and evidence that Toronto City Council was dysfunctional and in need of reform in the first place.
Problem is, from the opening paragraphs of his judgment, Belobaba appears openly contemptuous of the government, and only too ready to nail it to the wall. That results in some pretty convoluted reasoning.
The biggest flaw is his overbroad definition of freedom of expression, and the finding that Bill 5 interfered with it.
If running for office is a means of expression, the new law did not bar anyone from doing it; the 2018 candidates’ guide clearly states that, “If your municipality has wards, you can run in any ward – you do not have to live in a particular ward in order to be its councilor.”
Redistricting thus didn’t disqualify anyone: what it did was affect candidates’ chances of winning, since they would now be facing different and possibly more opponents.
As for the voters, they would still be free to express themselves at the ballot box: nothing guarantees you the right to vote for a particular person, just the right to vote in general.
Had the government targeted specific candidates, then one could argue they were unfairly limiting voters’ choices, but Bill 5 didn’t do so because it affected all aspiring candidates equally.
Belobaba’s further contention that voters would be denied their right to express themselves because wards would be larger was also a stretch, and a direct challenge to the supremacy of Parliament to set the numbers of electors in a district.
The judge’s reasoning thus provided fertile ground for an appeal. But as he himself acknowledged, the timeframe to decide this case was tight — and for an appeal, it would be even tighter.
His judgment gave the government two equally unpalatable choices: accept it and revert to a 47-seat Toronto council, challenge it and risk whatever verdict you get being moot anyway, because it wouldn’t be rendered in time to affect the 2018 election.
Belobaba put Ford into a lose-lose position, unless the premier was willing to go nuclear and invoke the notwithstanding clause. Which, as it turns out, he was.
This should have surprised no one. The reason Ford found himself in this predicament in the first place was because of the act-first-ask-later manner in which he introduced Bill 5.
Had Ford included it in his platform, candidates couldn’t have said they didn’t see it coming. He likely chose not to do so because it would have put him at odds with Mayor John Tory during the campaign, and feed into the fear that Ford would use his powers as premier to beat up on Toronto once elected.
That fear, unfortunately, appears to be justified.
WATCH BELOW: Tory says Ford invoking notwithstanding clause is ‘overreach’
If Bill 5 was an isolated incident, it could perhaps be chalked up to Ford’s desire to reduce the cost of government and rein in a spendthrift council. But it’s part of a pattern of Toronto-centrism by this government which is taking on disturbing overtones.
First came Bill 5; next came the proposed takeover of Toronto subways by the province; last week came Ford’s plans to revamp Ontario Place. While the latter item does fall in provincial jurisdiction, it is hardly a crying priority — unless you rewind to 2013, when Ford and his brother, the late Mayor Rob Ford, plumped for a casino in the area, which was nixed by the city council of the day.
Doug Ford’s premiership is turning into a settling of accounts for every grievance he still bears against those who opposed him and his brother when the two of them ran Toronto. This isn’t about principles. It’s personal. And petty.
It also brings to mind another leader south of the border who brought a similar bulldozer mentality to government. Doug Ford is not Donald Trump on the issues, but he certainly resembles him in style.
While his base may eat it up — for now — long-term, this risks becoming a problem for the Progressive Conservative brand, just as Trump’s takeover is for the Republicans in the United States. It’s also putting the wind in the sails of Jennifer Keesmaat, Tory’s chief left-wing challenger for the mayor’s chair.
Why Ford would want to help elect her is a mystery, as she represents everything he fought against for years, starting with bike lanes (Keesmaat even cycles to work).
Finally, Ford is making mayors across the province nervous: if he’ll drop a constitutional bomb on Toronto, what about their town?
A government as ambitious as this one doesn’t need these distractions. Ford needs to put the personal stuff behind him, and focus on the big priorities: the economy, health care, and education. That is, if he really wants to govern for the people — and not for himself.
WATCH: Next steps of Doug Ford’s fight to cut Toronto city council
Tasha Kheiriddin can be heard between noon and 2 p.m. ET on Global News Radio 640 Toronto. She’s also a columnist with Global News.
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