Sometimes legislators must say ‘no’

It’s good to see that here in the centre of our Confederation, the issue of our time is supplying the country with such explosive debate. The question of how many people should sit on Toronto’s city council has long lain dormant, even unacknowledged, asa—oreventhe—pivotofCanada’s constitutional health. But in the past week or so, Premier Doug Ford’s idea, so to speak, of trimming the number of simians approaching the typewriter has engaged more press attention that the NAFTA talks and Trans Mountain combined. Who knew that cutting the number of councillors that get to decide which downtown Toronto street next gets a bike path and a licence to open a hen farm could so threaten the Confederation?

Before approaching that aftermath of invoking the notwithstanding clause, it will be useful to address in isolation the actual basic question that precipitated the furor. Reducing the number of Toronto councillors from 47 to 25: Will this improve Toronto’s city council? That’s open to debate.

The age of miracles may be in its last few dwindling minutes, but a tick-tock or two of its unaccountable power remains. Even an institution seemingly impervious to enhancement may, under new circumstances and reduced membership, stagger into unwonted competence. It is just possible that things may get better.

Now consider the contrary: could this change, could any change, make it worse? More numbing, more tiresome, more dawdling, more fractious, more boring?

Those martyrs who have witnessed Toronto city council in full deliberation, and survived with reason intact, will adamantly testify that such is utterly beyond the powers of human contemplation. Of the downward slope, Toronto city council has exhausted the arc; the graph is closed, the limit reached. Therefore, at worst, Premier Ford’s planned experiment at least allows for hope, and since hope — however fragile, even as a

reed on the bank to the gurgling swimmer caught in the undertow — is generally accepted as a good thing, all right minds must side with the premier. To cite Leonard Cohen once again in this space, Mr. Ford’s law is, at least a crack that lets the light get in.

Now to the troublous awakening of the notwithstanding clause (NWC). To his opponents, invoking the NWC is the most parlous moment in our history since the Plains of Abraham. By this enormity Ford has opened the gates of constitutional hell, splintered the rule of law, opened the floodgates to dread populism and dictatorship, and — blasphemy itself — shattered the veritable Mosaic tablets of Canadian citizenship (brought down in the ancient days of 1982), the Charter of Rights and Freedoms. Not that fair field Of Enna, where Proserpine gathering flowers, Herself a fairer flower, by gloomy DisWas gathered …

It is the fall of man all over again. If Doug Ford is not the snake himself, he has introduced the snake into Eden garden.

Well, if invoking the NWC in the cause of changing the numbers of Toronto city council is going to unglue the Confederation, pre-empt the rule of law, and (the alarmist’s most cherished nightmare) “Trumpize” Canada, then the Canadian way of life has been sitting on the point of a pyramid for far too long. If the NWC is the snake in the garden, that snake is chewing on its own tail.

For, as so many deeply versed in matters constitutional have observed, the NWC (a) is how the Charter came to be in the first place; (b) is integral to the Charter of Rights it allegedly blows up; (c) has already been exercised by Quebec and Saskatchewan without consequent dissolution of the federation; and (d) was at least invited by the flippant (“Crickets”) and personalized (“more out of pique than principle”) Ontario judicial decision on Ford’s Bill 5 that stimulated its invocation in the first place.

On that last point, where the jurist in question, Edward Belobaba, offered the popular speculation that the motivation behind the law induced his reason to nullify it (see: pique v. principle), a few questions could be raised.

A lot of the backlash comes from the common inference that Doug Ford is acting because he has a grudge against Toronto city council. A couple of things about that. The law wasn’t passed by Doug Ford. It was passed by the Ontario Legislature. Secondly, outside a courtroom, speculation on why a law was passed, what prompted the bill — i.e., what was in the premier’s mind when he voted for it — is perfectly ordinary. That’s what coffee shops are for: to endlessly riddle what we can never fully know, and populate castles of speculation with creatures of our partisan imaginations.

But courtrooms are not coffee shops.

In a court, unless motivation is specifically addressed, evidence called for, witnesses questioned, for a judge to adopt coffee-shop understanding of motivation and then rule on the motivation behind a law rather than what the law actually says, could be seen as overreach. Indeed it could invite parallel coffee-shop chatter that the decision grew out of a judge’s motivation and that the reasoning followed suit. Of course we are not suggesting that in this case: that would line us up somewhat with the reasoning in the case we are criticizing.

Finally, the notwithstanding clause has undeniable utility and worthy purpose, even if, yes, it’s the “boorish” Doug Ford who calls for it. This was well understood by its authors, among them Peter Lougheed, whom I trust none would deride as, under the current understanding of the term, a “populist.”

It is frequently seen that what cannot be won electorally — by platforms put out by parties, argued in an election, and left to the choice of voters — is achieved instead by highly leveraged suits in various courts, accompanied by a great ancillary arm of special interest groups and litigation-hungry activists.

It’s the let’s-avoid-the-people, let’s-go-to-the-courts-instead finesse. The harder, messier way of open political contest is still the better way, and the one most easily accordant with the idea of democracy. You may have “kritocracy” — rule by judges — or the better idea, democracy, of the, by the, for the … you know.

The NWC is an instrument of the Charter of Rights to protect against judicial overreach. There are times judges should say no to legislatures. There are other times legislatures should say no to judges. Seems fair. Very Canadian, in fact.

(P.S. Caroline Mulroney is not her father.)