Doug Ford has smashed a false taboo

Hysteria in the media and from left-wingers over Ontario Premier Doug Ford’s use of the notwithstanding power would be amusing if it were not so ill-informed. Listening to Ford’s howling critics, you would think that our constitutional democracy is on the brink of ruin. Nothing could be further from the truth.

The notwithstanding power is as much a part of the Canadian Charter of Rights and Freedoms as are voting rights or freedom of expression. Indeed, there would have been no Charter if had not been for the notwithstanding clause. It was a concession then-prime minister Pierre Trudeau had to make in order to secure provincial support for the Charter.

Back in 1981, the governments of the western provinces were suspicious of both Trudeau and his handpicked chief justice of the Supreme Court, Bora Laskin. Alberta was still reeling from the impact of Trudeau’s National Energy Program and a Laskin-led Supreme Court had just ruled against provincial regulation of natural resource development in two cases from Saskatchewan. The four western premiers — representing three different political parties — viewed Laskin as sharing the same pro-Ottawa values as Trudeau.

They saw the Charter — accurately as it has turned out — to potentially be a disguised form of “disallowance,” the historic constitutional power that allowed the federal cabinet to overrule provincial laws. Only, under the Charter, it would be federally appointed judges exercising the policy veto over provincial laws rather than the federal cabinet. The premiers never would have given Trudeau the support he needed without the notwithstanding clause.

Although it was born of political necessity, the notwithstanding power is fully justified in theory. It represents a creative middle ground between parliamentary supremacy and judicial supremacy. It strikes a balance between Canada’s tradition of responsible government and the American model of judicial review of a constitutional bill of rights.

Accordingly, the notwithstanding power has been defended by no less a constitutional authority than Professor Peter Russell of the University of Toronto, who wrote, “To defend the notwithstanding clause is not to oppose the Charter. After all it is part of the Charter. It was included in the Charter for a very good reason: a belief that there should be a parliamentary check on a fallible judiciary’s (Charter) decisions.”

In sum, the notwithstanding power is not a check on the Charter, but on judicial misinterpretation of the Charter.

The decision this week from Ontario Superior Court Justice Edward Belobaba ruled that the Ford government’s Bill 5, aimed at shrinking the size of Toronto city council, was unconstitutional. Was that a misinterpretation of the Charter?

Experts differ. So let’s answer these questions:

Do the Charter’s Section 3 voting rights apply to municipal governments?

Has the Supreme Court ever imported Section 3 voting-rights concerns into a Section 2 freedom-of-speech ruling?

Are there any highercourt precedents that support this ruling?

The answers are: No, no and no.

Bill 5 may be poorly thought out and disruptive. But that doesn’t make it unconstitutional. The same could be said of hundreds of other duly enacted legislative policies — at least in the eyes of their critics.

Rather, this is a classic example of a court ignoring the actual text of the Charter and adding new meaning to a Charter right in order to strike down a law that it doesn’t like. In cases like this, judges are making law, not enforcing the law as it is written. And this explains the left’s hysteria over Ford’s use of the notwithstanding power.

Ford’s critics are not actually this angry and alarmist over the practical consequences of the use of the notwithstanding power in the Toronto municipal elections. The vote will be held without incident, and a year from now no one will even remember or care about how many councillors they elected.

Their real fear is that Ford’s use of the notwithstanding power will set a precedent that legitimizes its use by other governments. If the government of Ontario can use the notwithstanding power to defend policies it deems important, why can’t Alberta or Nova Scotia? The stigma of being a political outlier will be removed.

The political left in Canada has been very successful in using the courts to win policy battles that they can’t win in fair and free elections. The list of policies that have been dictated by judge-made law is long: abortion, samesex marriage, physicianassisted suicide, Aboriginal rights, immigration and refugee determination, judicial salaries, Senate reform, prostitution, collective bargaining. But whatever is next on their policy shopping list could now be in jeopardy.

Ford’s successful use of the notwithstanding power risks breaking the political taboo that the left has built around its use over the past 30 years. Like many others who have grown tired of our imperial judiciary, I hope it does. It’s time to reset the balance between “responsible government” and the protection of our fundamental rights. Maintaining that balance was the original purpose of the notwithstanding clause.