COMMENTARY: Judicial review is a fundamental pillar of democracy. Don’t let Doug Ford tell you otherwise
By now, you’ve probably been made aware of the fact that the newly minted premier of Ontario, Doug Ford, is invoking the notwithstanding clause in order to override a Superior Court decision which quashed his initial attempt at slashing Toronto city council while a municipal election was already underway.
No substantive reason has been given as to why it was necessary for the province to meddle with the Toronto election to begin with, nor has there been any real justification as to why one would need to resort to the so-called nuclear option instead of just introducing new legislation the day after Torontonians had their say at the ballot box.
None of that really matters, though. The province can swoop in and do whatever it wants, since our agrarian-era constitution reflects the time in which it was written, making cities creatures of the province. Additionally, Premier Ford is fully within his rights to invoke Section 33 of the Constitution Act, 1982, however brash and ill-considered it may be.
Indeed, it isn’t the notwithstanding clause that is the most troubling aspect to this entire chaotic spectacle. Rather, it is the sheer disdain Ford has demonstrated for one of the most fundamental pillars of our democracy, judicial review.
Ford has taken particular umbrage with the notion that a member of the judiciary would have the audacity to do his job. Throughout this entire ordeal, Ford and his nation keep mentioning that Superior Court Justice Edward Belobaba was unelected and unlike the judge, Ford has a mandate from “the people,” suggesting that the entire concept of judicial review is somehow illegitimate.
First, it’s important to note the blatant hypocrisy in a provincial government currently lamenting and demonizing the concept of the courts intervening when they are presently in the process of taking the federal government to court over the issue of a carbon tax, in the hopes that a court will use its powers to side with the province.
Additionally, Ford and the sycophants now echoing his anti-democratic talking points should also note that Ford himself, as premier, is unelected. As are all premiers. Ditto for the prime minister. As Professor Philippe Lagassé notes: “Governments aren’t elected in Canada. They are appointed. The Crown appoints a first minister to lead a government based on their ability to hold the confidence of the elected house of the legislature.” We’re all basking in ignorance of our own electoral system by suggesting otherwise.
WATCH: Trudeau says government disappointed in Ford using notwithstanding clause
Yet what’s even sillier is that Premier Ford can’t even claim to have been elected by a plurality of Progressive Conservative members, as that title goes to Christine Elliott. You’d think a guy so concerned with mandates from the people would have a little humility considering he didn’t walk away from his own leadership race with one. And for those of us who have a working hippocampus, we’ll all remember that Ford was willing to — you guessed it! — go to the courts over the results of the leadership race.
But let’s get down to the crux of having an unelected judiciary. It ensures the independence of the judicial branch, while maintaining a constitutionally mandated check on the legislative branch. The fact that judges are unelected does not make them any more illegitimate as part of our democracy, than the elected legislative branch. In other words, unelected judges are a feature of our democratic system, not a bug.
It’s one thing for a guy like Ford to make this assertion, which is worrying enough, but considering he couldn’t even answer the most straightforward question of how a bill becomes law, it’s not exactly surprising that he would proudly display his incompetence once again. It’s more worrying that people much smarter than Ford would parrot this asinine attack, and it’s a sobering reminder at how quickly people can openly embrace authoritarian principles if it serves their immediate interests.
This points to a much larger problem within the conservative movement in this country. Nobody within the conservative intelligentsia seems willing to stand up for a fundamental pillar of our democracy. There are lots of countries wherein the political class constantly overrides the judiciary, or where judges are blatantly rubber-stamping decisions for the political class of the day, serving effectively as political cronies. None of these countries are places in which any rule of law loving Canadian would want to live.
Canadians are in for a rough ride ahead if an entire segment of the political spectrum is OK with sidelining the rule of law and watering down fundamental democratic principles. I guess we’d better buckle up.
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