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We all know you can’t put a genie back in a bottle. But can you unexplode a nuclear bomb?
The literal answer is obviously no — and based on how weird the world is getting, we’ll probably be lamenting that fact in the not-too-distant future. But in a metaphorical sense, Ontario is doing exactly that. Or, perhaps more accurately, retroactively deciding not to drop the bomb in the first place.
READ MORE: Ontario Court of Appeal sides with Ford, paving way for a 25-ward Toronto election
I’m referring, of course, to the notwithstanding clause of the Constitution Act, 1982 — Section 33, specifically. The notwithstanding clause gives the federal or provincial governments the ability, in some circumstances, to proceed with legislation (or keep it in effect) even after a court has ruled it, in whole or in part, unconstitutional. (That was quite the sentence. But this has been quite the month.) Since Premier Doug Ford said he would invoke the clause to proceed with his plan to shrink Toronto City Council despite a court ruling against the plan, many commentators have said Ford’s decision was akin to him dropping a political nuclear bomb.
Except now … he’s not.
COMMENTARY: The fight over Toronto council is stupid and I wish I’d slept through it, Matt Gurney says
The entire affair has been twisted and complicated. If you want to know how I feel about the whole thing, check out my last column, which was summarized succinctly and entirely accurately with the headline, “The fight over Toronto council is stupid and I wish I’d slept through it.” Amen, Matt-From-A-Week-Ago. But there’s been a new twist since even then. The original judicial ruling against Ontario’s proposed bill, which necessitated the use of the notwithstanding clause in the first place — well, “necessitated” if you’re Doug Ford — has been stayed. That’s a legal term that in this context essentially means negated. The ruling will not take effect until it can be fully appealed. And who knows when that’ll happen.
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So did Ontario actually drop the bomb at all? For all the hoopla and arguing and the barrage of think pieces and rhetoric and constitutional insta-experts … did it actually happen?
WATCH: Ipsos poll gauges how Canadians react to Doug Ford’s use of the notwithstanding clause
I’m probably fixating on this admittedly minor wrinkle amid a much broader picture because I simply can’t spare any further mental energy on that bigger picture (see last week’s column again). The best news for me today is that I might not have to think or talk about this tomorrow. But this particular wrinkle does fascinate me. Critics — and even some supporters! — of Premier Ford were quick to point out that his action was unprecedented. Ontario had never before used the notwithstanding clause. Other provinces, yes. But never Ontario.
So, in the end, did it?
The best answer seems to be a simple no. It began the process of using it when it introduced Bill 31, which was effectively Bill 5, with timings tweaked and the notwithstanding clause inserted to override the judge’s obliteration of the bill. But that legal ruling has now been stayed. Bill 5 lives again. Bill 31 is no longer needed, and Ontario says it will not take any further steps to pass it. It won’t become law.
So, technically, Ontario never actually dropped the bomb. It armed one, loaded it onto a bomber and the bomber took off and flew toward a target, but it was called back to base, the bomb undropped. Ontario has never used the notwithstanding clause. The streak continues, as it were.
But that answer tells only part of the story. The fact that Ontario put that nuke onto the plane and scrambled it has obvious political ramifications. Though I’ve wearied of them, the debates it has triggered will probably be helpful for society. We’ve certainly all probably learned a few things about our governance in recent days, and however that knowledge came, it’s still useful to have. And the apparent, newfound willingness of Canada’s most populous province to even consider dropping the bomb is obviously going to be factored into future decisions, and analyses of decisions.
READ MORE: Majority of Torontonians oppose Doug Ford’s use of notwithstanding clause, poll finds
Maybe that’s a good thing? Certainly, the Ford government and its supporters think so — if I may abuse the nuclear metaphor further still, there certainly seems to be some hope that future overly creative or meddling judicial rulings will be deterred by the prospect of a swift nuking. If so, the threatened use of the clause isn’t a bug in a bumbling process. It’s very much a feature, the central one, of a message being sent to our courts (and those who turn to them).
I’m not personally convinced that judges will be much impressed or meaningfully deterred by anything Doug Ford considered doing these recent weeks. I’m equally doubtful we’ll be talking about this much a year from now, let alone by the next election. But it has still been interesting, even for a cynic like me, to watch all the political manoeuvres of the last few weeks.
And I note, in closing, that Doug Ford had said he’d use the bomb again. I believe him.
Matt Gurney is host of The Exchange with Matt Gurney on Global News Radio 640 Toronto and a columnist for Global News.
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