Nothwithstanding Doug Ford
David Simmonds

My goodness, Premier Doug Ford has certainly made himself a meal of his determination to cut down the size of Toronto City Council, as almost the first act of his government. As I write this, the Ford Forces have finished second reading of the Efficient Local Government Act (ELGA), once known as the Better Local Government Act. The ELGA makes the fight over the size of the Wellington County council seem like a church tea.

Halving the ridings.

The government expects the new Bill to go to third reading and receive royal assent on Thursday next. Candidates in the wards that result from the legislative change would then have a few days to file nomination papers for election in a 25-riding city, not a 47-riding city. Will chaos rein?

Monday last, Justice Edward Belobaba, of the Ontario Superior Court, set the Better Local Government Act (BLGA) aside. He found it violated voter and candidate rights under the Canadian Charter of Rights and Freedoms. His decision focused on freedom of expression, because the BLGA both came into effect during an on-going election campaign and almost doubled the size of constituencies. The government is appealing that decision.

The new ELGA is the old BLGA with a kicker. It invokes the “notwithstanding” clause of the Charter. That clause says that a parliament can expressly declare its legislation to be effective notwithstanding the fact that it infringes on the fundamental freedoms or legal or equality rights of Canadians, provided the legislation is renewed every five years.

The Charter, including the notwithstanding clause, came into force in April 1982, as a part of work, by Pierre Trudeau, to patriate the Canadian constitution. I can remember attending on Parliament Hill the day the Queen sign the deal to make it official. My wife remembers it even more vividly, having been six months pregnant, at the time; she nearly blacked out from standing in the crush.

The elder Trudeau was a proud man that day. Prior to the Charter, a provincial government, legislatively, could do what it wanted. The only caveat was unless the province was traipsing into the jurisdiction of the federal government.

People are now upset at the Ford government for invoking the notwithstanding clause over a mundane piece of legislation. Old warhorses trot out to remind us the clause was a political compromise, in the first place, and intended only for exceptional use. Does shrinking the size of Toronto City Council qualify as an exception?

Appointed versus elected distinction.

Doug Ford has defended his actions by declaring, “I was elected. The judge was appointed.” He has essentially given notice he might just throw the notwithstanding clause into every piece of legislation he initiates. The dichotomy between election and appointment will always exist and he might as well avoid the prospect of judges striking down his legislation by taking them out of the picture at the starting gate.

Does the willingness of Ford to resort to the notwithstanding clause so readily cheapen the Charter? Although I don’t consider that stance very sporting, I don’t think so. The Charter may have begun life seeming to be a set of platitudes on paper, but its judicial application has been deep and broad.

The Charter is as a tree that has grown to maturity. People should be able to discern that it is the government, not the Charter, cheapened by Ford. The people will hold the government accountable for its lack of restraint, at the appropriate time.

In my view, the notwithstanding clause is appropriately in the Charter. It reflects the primacy of the legislature and the voter. It also permits a government to rein in a judiciary that, in the process of putting flesh on the bones of rights, may set obligations on government it can’t live with, either because of the administrative complexity or because there are other governmental financial priorities. The notwithstanding clause is a useful trump card for the legislator that is prepared to be held accountable.

The Premier needed practice.

Whether Ford has played that card, responsibly, is another matter: the crisis that supposedly warrants the imposition of the notwithstanding clause is entirely of his own making, in particular from his insistence that the change apply to Toronto City Council, his one-time haunting ground, in the middle of an election campaign. Maybe he should have practised, first, with some legislation affecting some small outpost like, say, Wellington County; then again, maybe not.