Hugh Mackenzie
Huntsville Doppler
Most people who read this column will be aware that when it comes to partisan politics, I am a Conservative. But I am not a blind one. Unlike many partisans, I have no trouble speaking out when I disagree with the political party I generally support. This is one of those times.
I cannot agree with the manner in which Ontario Premier Doug Ford is pushing through legislation to reduce the number of council seats in Toronto from 47 to 25. Nor am I happy with the reason he is giving for doing so, because frankly it is fake news.
To be clear, municipalities are a creature of the Province and no one is disputing the Province’s absolute right to determine the number of council seats in the City of Toronto, although I am not sure how many people really care. In fact, it is probably a good move and one that will almost certainly follow in other municipal jurisdictions including Muskoka.
Equally clear to me is that it is the sole right of duly elected governments to pass laws. It is the role of the courts to interpret laws and to enforce them but not to create them. What is particularly concerning to me is that the Premier and his government are justifying their extraordinary measures to push this legislation through by stating the court, in its decision to override the portion of Bill 5 that changed the number of council seats in Toronto, was creating law and therefore usurping the right of the legislature. This is simply untrue. I repeat, it is fake news.
In his decision related to Bill 5, Justice Edward Belobaba clearly acknowledged the right of the Ford government to determine and legislate the number of council seats in Toronto. That was not his concern. What he was interested in was whether the manner in which Bill 5 was introduced, in the middle of an election period and with no consultation, infringed upon the Charter rights of municipal candidates and of the voting public. He found that it did. An appeal of his decision will be heard this Tuesday and a higher court could well throw out the lower court decision if it determines that the effect of Bill 5 on candidates and voters did not meet the threshold of discrimination contemplated in the Canadian Charter of Rights and Freedoms. Nevertheless, the decision of Justice Belobaba was based on his interpretation of existing law as it relates to the Charter and was not an attempt to create new law as alleged by Premier Ford.
In his reaction to the Court decision, Doug Ford is using the nuclear option on an issue that deserves little more than a firecracker. Very little turns on whether the Toronto Council is reduced in size now or in the near future. Using the Notwithstanding Clause contained in the Charter of Rights and Freedoms for this purpose may well be legal but it is still wrong and it is dangerous to all Canadians.
Former Premier Bill Davis, a Conservative, was one of the authors of Canada’s re-patriated Constitution that contains the Charter of Rights and Freedoms. He put it this way.
“The sole purpose of the Not Withstanding Clause was only for those exceptionally rare circumstances where a Province wanted to bring in a specific benefit or program provision for a part of their population – people of a certain age for example – that might have seemed discriminatory under the Charter.” He went on to say, “That it, (the Not Withstanding Clause) might now be used regularly to assert the dominance of any politician over the rule of law or the legitimate jurisdiction of our Courts of Law, was never anticipated or agreed to.”
Legislation to change the number of seats on a municipal council hardly rises to the level of important matters of public policy for which former Prime Minister Jean Chrétien has said the Notwithstanding Clause was intended. The inherent flaw in using it in the manner that Premier Ford has proposed, especially when he has said he will not hesitate to use it again, is that it contributes in a serious way to the trivialization of the Canadian Charter of Rights and Freedoms. Former Prime Minister Brian Mulroney once opined that he feared that the Notwithstanding Clause could render the Charter to be not worth the paper it is written on. The action by the Ford government does nothing but perpetuate that prophecy.
There are those who will not be sorry to see the Charter of Rights and Freedoms weakened. But it should be remembered, it was not just the product of Pierre Elliott Trudeau. It was also crafted and approved by nine of Canada’s Premiers who were of various political persuasions. It is the law of the land and a key component of our Constitution. For better or for worse, it is who we are.
Using the Notwithstanding Clause to push through legislation related to Toronto Council was neither necessary nor wise. Time and patience would have accomplished the same thing. Just because you can do it, doesn’t mean you should. All Ontario Premiers before Doug Ford, since the creation of the Charter, of all political stripes and facing issues far greater than the size of Toronto Council, have refrained from using the Notwithstanding Clause. They knew better than to trivialize its intent and so should Doug Ford.
So, too, should many of the elected people around the Premier; people I otherwise admire, like Christine Elliott, Caroline Mulroney, Rob Phillips and indeed our own MPP Norm Miller. They know this is not about a Judge creating law. They probably suspect this is more about Doug Ford getting payback on his Toronto rivals than anything else. They also know on its merits, that this is purely a Charter issue. And they know that using the Notwithstanding Clause in this particular instance severely undermines the Canadian Charter of Rights and Freedoms. It was a free vote. Of course, there would still have been consequences if they did not support the Premier’s legislation. But nevertheless, it was a rare opportunity to stand up and be counted.
What a damn shame that they chose not to.
Don’t miss out on Doppler! Sign up for our free newsletter here.
Personally, I voted for a meaningful change to “champagne socialism” and I would rather see the real McCoy rather than just another carrot being dangled in front of my face. Doug Ford won the vote; although I can only imagine how hard it would be to do his job with one hand tied behind his back. Justice Edward Belobaba can try to rationalize his decision any way he wants but our judiciary, the Appeals Court, has passed their ruling… The Judge “erred”. No laws have been broken. Period. Judging by half the comments here, you would think that Doug Ford just shot someone’s dog. It’s not the first time that Section 33 has been invoked and it most definitely won’t be the last. Why can’t people just accept the fact that this guy is actually intent on doing the job that he was elected to do and be grateful for the fact that he is trying to save us all the money that we so arduously earned? Hugh, you seem to be relying upon the false assumption that Conservative MPP’s are afraid of Ford and hence do not want to stand up to him. Have you considered the possibility that Conservative MPP’s agree with Doug Ford? The only real “shame” that I see from where I am standing is that you call yourself a Progressive Conservative.
Perhaps you can back up your conjecture with some facts? It “appears” to me that you want the rest of the world to believe that P.C. MPPs are afraid of Ford. You may want to rein in Ford but I am far from convinced that P.C. MPPs feel the same way. Nice try though.
For the people? Then why pray tell, does Ford keep repeating that he is going to deliver for “2.3 million people that elected this government. His actual job is to govern on behalf of all Ontarians. That’s 13.6 million people.
#NOTfordnation
Ever since Premier Ford was elected on an “invisible” platform (save for a promise to reduce both the deficit and the debt); he has been doing everything but. How many petty items is he going to attack, before he actually gets to the only item which won him a majority. One-dollar-beer; no District-wide-election for CEO; and now, Toronto Council evisceration.
.
And his completely reprehensible use of The Notwithstanding Clause: as Ms. Bagshaw suggests, it may become a favoured policy tool. Even in the throes of Meech Lake (when The Notwithstanding Clause could have been the initial step toward a fair and meaningful resolution); it was not invoked. He is making a joke of a revered position: It’s time for a motion of non-confidence. Of course, it would fail, but at least, it would give some Tory backbenchers a chance to cross the floor.
I am disappointed in Norm Miller but I am proud of Green Party leader, Mike Schreiner, who has been standing up to Doug Ford in the legislature since the beginning. On Sept 15 Mike released a statement saying, “I will not be complicit in the Premier’s personal vendetta against municipal governments and his gross abuse of a last-resort tool in the Constitution. I will not help him to manipulate Queen’s Park and our Charter rights for this petty political battle.” That’s a philosophy I can support.
Agree !!! We are living in in a World that Industry and Employers in Private Sector expect more for less Politicians seem to ignore this practice . Not many voted Officials really care when Companies downsize and People lose Their Incomes and In some cases Pensions . Politics is a very lucrative business and used in many cases as a Stepping Stone to bigger and Bettter Opportinities . We are Overgoverned and Over taxed . The perks given to these Councillers are more than The average struggling worker makes and even better for Them Tax Free
. Next Time a Companie “Downsizes” to become more Cost Efficient How many People will be writing letters of disagreement “
This current Government faces many challenges after 15 years of Liberal rule. Sadly it is very cost effective to eliminate positions prior to and election. No Severance costs to incur. Is cutting costs and trying to restore order to a dysfunctional government body a bad Idea?
What are the alternatives, and how cost effective are they?
We will never have true democracy in this country unless we insist on Transparency and
Accountability.
Hughie Mac, so sad to see you blow it, IMO,
I looked up to you and the other Hugh, – who was one of my nicest and most intelligent customers away back when I was in business.
To the pair of you, I’d just like to say, – without prejudice, – why you’d want to bad mouth a Premier who is doing things as he sees them to rid an unmanageable city council of all the BS that is flying around presently.
Sure you both gave tongue lashings to Mz. Wynne – and most of them were asked for, – and deserved as well. She inherited McGinty’s blatant wrongdoings, but was a shameless failure as well.
Why castigate a new Premier when he didn’t have the time to be bothered refuting the points you armchair quarterbacks presented?
Is that nice?
You realize that all this uproar is probably going to get John Tory turfed in this election don’t you?
P.S. – In case you really don’t know it, the District chair is the same as a Board chair – elected by its members so they are all the same level, except one has the deciding vote. Elect him at large and he is the Supreme Ruler.
Sheesh! what do we have for brains here??
Right on John Davis! Toronto was the one Council that was the most dysfunctional by what I can see. I don’t know about the other Councils is other cities. With the overabundance of elected bodies, any decisions reached would amount to Mob Rule. Fact is, there was so many bodies with so many different ideas that conflicted with each other, they never seemed to reach agreement on anything.
I read and re-read the decision of the judge and I can’t see what part of the Constitution was broached or breached.
If there was something written in like, “Thou shalt not change the makeup of wards in the City of Toronto within (X number of) days of an election day)” – then Premier Ford would not have been able to do so. There wasn’t, – so he did!
Give Premier Ford a break will you? He is finally getting something done! To all of those who are so fearful about the ‘Monster’ they’ve elected and apologetic for having crossed to the other side, I say don’t bother being apologetic, we know where you’re coming from, – now.
BTW, where was all this backlash when McGinty forked out 1.2 Billion taxpayers dollars in a failed attempt to bolster his party’s fortunes. Where was his consultation with the Public.
But, hey! What do I know? Go finish your coffee folks, it’s getting cold. I know because mine is! Drat!
Norm Miller, Caroline Mulroney, and Christine Elliott, appear to be spineless when faced with a political bully, who is an authoritarian strongman, and who certainly does not reflect the essence of the Canadian ‘conservative’ democratic tradition – far from it! Doug Ford on this very significant and problematic issue of invoking the notwithstanding clause appears to be obsessed with personal political vendetta rather than governing in the interests of all the people of Ontario. At times, the strategy and tactics of Doug Ford and his staffers – and the talking-points of Ford himself – have shades of what the Russian Leninists in the old Soviet Union called ‘democratic centralism.’
This is an interesting time for the 3 branches of our Country’s democratic system, it provides a learning curve for the public for a specific governance issue. There is a process that appears to be missing in what’s noted here. It probably would be helpful in providing balance to the “fuddle fuddle”. Also of note, perhaps the writing is on the wall for all municipalities and their core mandates vs the soft services. It appears there are many factors at play here, and one of the important ones involves the timely exercise of this particular pillar in the PC’s platform. https://tvo.org/blog/current-affairs/doug-fords-use-of-the-notwithstanding-clause-may-be-extraordinary–but-its-completely-legal
I agree with John Davis.
The Western Premiers insisted on the notwithstanding clause as the price for their support for the constitution. It exists to be used.
Quebec uses it constantly. It has been used elsewhere as well.
Ford was elected to enact change. He knows that a process to reduce the size of Toronto Council would inevitably end up as a huge distraction and side show. He wanted to avoid that. The judgement contained some obviously partisan language which was unwise IMO.
I have no doubt that the Cabinet and other MPPs could stand up to Ford should they believe it called for.
The Nwc isn’t the holy grail. Let’s keep things in perspective.
I admire your ability to be non-partisanabout issues when there is a lot at stake. Thank you for saying this Hugh. It goes a long way to helping all of us sort out what is going on here. I too am disappointed with Norm Miller. I told him to his face (and don’t get me wrong, I know and like Norm and his family very much) that I would not be voting for him because I could not be a part of making Doug Ford the premier of Ontario. This was before the election and Norm spoke about the fact that Ford is gathering a good team around him to form a strong and reasonable government and that it’s not only about one person. Hmmm. Seems you were wrong Norm.
Hugh, at first blush how could anyone disagree with your arguments. Time however does matter, how many Councillors have run on the promise to reduce the size of District Government? Only to see its budget, staffing and Empire grow. Even though the electorate constantly votes for change, what usually happens is the furniture is simply moved around the deck of the Titanic as it continues to navigate to its disastrous end. Ford sees the icebergs and has moved swiftly to steer clear of them. The Progressive Conservative ( true name of the governing party in Ontario) cast out its leader and elected a new one during an election period and by the way Won a Majority in the legislature. If the city of Toronto had followed the rules legally set down by the ruling body for municipalities, The Provincial Legislation then The Clerk of Toronto would have everything in place for this falls election. If a Judge is allowed to step in and create a new unprecedented judgement ( Liberal or Conservative appointed) then we have much greater things to be fearful of. We have a duly elected government of the people, for the people and by the people willing and able to get the job done, not withstanding petty politics.
I wonder how people would react if the next thing that Doug Ford wanted to reduce in size was the Ontario Provincial Police force? That would also save a lot of money. If people didn’t like it… no problem… just use the “Notwithstanding” clause and push it through. Would our MPPs accept that proposal?
I agree wholeheartedly with you on this one, especially your paragraph about standing up to the bully by other PC MPP’s –
It reminds me very much of how Republicans in the US Senate and House of Representatives have become Trump lapdogs. With some (e.g. Ted Cruz) it was instant; with others (e.g. Lindsay Graham) it took longer. But have done absolutely nothing to stop him from eroding the rule of law in their nation, using the Presidency as a personal money-maker, serving the interests of Vladimir Putin, etc., and some (e.g. Devin Nunes) have actively helped him. Ontario’s Conservatives should not be acting the same way, like courtiers serving a king, up here.
My question is , Why Toronto only? Are there other cities that have too large of a city council? If so, why are they not having the same thing done at this time and get it all done at once? We have so much that our province needs to deal with. Toronto city council isn’t one of them at this time. It can be done within the four year period of time he is in office. To do it right now, in such a hurry, using means that he is, looks like he has a vendetta. Makes Doug Ford look like a bully/dictator. Do as I do, or else, is the picture he is presenting. If we wanted a dictator, we could have moved to one of the countries already established with one.
Bravo Hugh; more people of all political stripe should speak out against this trivialisation of the Charter. I, as a voter am appalled at our MPP for not standing up to the premier.
Well said Hugh. It appears that PC MPPs are afraid of Ford and are unwilling to risk being tossed from the party by standing up to him. This is exactly the time they should rein him in. If they don’t he will become bolder as time passes. Those who choose not to act now will pay the price in the next election.