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.
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