Doug Ford plans to invoke notwithstanding clause. So what happens next?
Ford made the stunning announcement just hours after Superior Court Justice Edward Belobaba ruled that Ford’s Bill 5, the Better Local Government Act, which would reduce Toronto council from 47 seats to 25, was unconstitutional.
“I believe the judge’s decision is deeply concerning and the result is unacceptable to the people of Ontario,” Ford told reporters Monday. “A democratically elected government, trying to be shut down by the courts, that concerns me more than anything.”
The premier said he would recall the legislature Wednesday to reintroduce the bill and invoke Section 33 of Canada’s Charter, known as the notwithstanding clause, which gives provincial governments the ability to supersede certain portions of the Charter for a five-year term.
Ford — who never campaigned on cutting Toronto council — said his government would also appeal Justice Belobaba’s decision and added that he wouldn’t hesitate about using the notwithstanding clause in the future.
“I am going to use every tool at our disposal to make sure we hold up the Constitution and the democratic right of the people of Ontario,” he said.
For Toronto Mayor John Tory and other councillors opposed to Premier Ford, there is very little recourse when it comes to the notwithstanding clause.
“The short answer is no, there is nothing they can do,” said Carissima Mathen, a professor of constitutional law at the University of Ottawa.
WATCH: Trudeau says government disappointed Ford using notwithstanding clause
There is one final step the federal government could take, the constitutional power of disallowance, which the Trudeau government could essentially use to block any new law enacted by a province.
“That is Alice in Wonderland. They are not going to invoke disallowance,” Mathen said. “This is squarely within provincial jurisdiction and the federal government has no place here and no role here.”
Under the Constitution Act, 1867, disallowance is an imperial power granted to the Governor General that permits the federal government to instruct the lieutenant governor of a province to withhold proclamation of a law.
The last case of disallowance occurred in 1943 in Alberta regarding legislation restricting land sales to Hutterites.
University of Toronto political scientist Nelson Wiseman said not only would disallowance not happen, it’s a “spent power” meaning because it hasn’t been used in such a long time it’s invalid.
“I could see it be potentially used in an incredible, national emergency,” Wiseman said. “For example, Jean Chretien held out the prospect [over Quebec separating] but I don’t think he could have used it, either.”
WATCH: Tory responds to notwithstanding clause
Tory, who is seeking re-election on Oct. 22, met with Trudeau to express his concern with Ford’s move which he called a “gross overreach” but has not asked Ottawa to intervene. He’s also called an emergency city council meeting for Thursday.
“To use an oversized hammer to abridge the Charter of Rights and Freedoms of our country, as if the matter of how many councillors we have for this election is some sort of national emergency involving the overriding of fundamental rights, is a mistake,” Tory told reporters Monday said.
Speaking in Winnipeg, Prime Minister Justin Trudeau said his government was disappointed by Ford’s decision, but added that it’s Ontario’s choice to invoke the notwithstanding clause
“Anytime a government chooses to invoke the notwithstanding clause to override the charter’s protections it has to be done deliberately, carefully and with the utmost forethought,” Trudeau said.
“I won’t be weighing on the debate on how big Toronto municipal council should be. This is about the Charter and the values that underpin it.”
READ MORE: Horwath slams Ford’s decision to invoke notwithstanding clause
Justice Belobaba called Bill 5 “unconstitutional” and “hurriedly enacted” and said it “substantially interfered with both the candidate’s and the voter’s right to freedom of expression.”
Wiseman strongly disagreed with the judge’s ruling, saying that while the premier’s move may be unfair, municipalities are ultimately under the control of the province.
“So what can people do? They can vote against the government,” he said. “They can lobby against their MPPs and tell them, ‘Hey, you’re never going to get my vote again.’”
Mathen says it’s important to note that while Sec. 33 only applies to certain constitutional rights — sections 2 and 7 through 15 — it is concerning Ford would consider using Sec. 33 in battles over policies.
“This is a political move that demonstrates a casualness to the Constitution,” she said. “He seems to think he can use it at will just because he is thwarted by the courts.”
The Toronto city clerk confirmed on Monday that the municipal election is currently scheduled with 47 ward seat boundaries and candidate nominations that closed on July 27. But Ford’s Progressive Conservative government, which currently holds a legislative majority, will likely change that once Bill 5 is reintroduced and voted on.
— With a file from the Canadian Press
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