National Post (National Edition)
Court ruling a win, but also a rebuke
Overriding charter was ‘ill-considered’
Wednesday’s Ontario Court of Appeal decision staying a lower-court ruling that struck down a provincial bill redrawing the map for elections to Toronto city council is being greeted as a victory for the government of Doug Ford.
And indeed the decision means the city election will almost certainly proceed, six weeks from now, along the premier’s preferred lines, halving the number — and doubling the size — of the wards from which councillors are elected. The threejudge panel of the appeals court ruled, rightly it would appear, that the lower court judge erred in finding the bill in violation of the Charter of Rights: however unfair, illconsidered, and hasty it may have been, that does not in itself make it unconstitutional.
Yet in granting the stay the appeals court handed Ford a stinging defeat on another front: his extraordinary decision to invoke the Constitution’s notwithstanding clause to exempt the bill from Charter scrutiny, and the broader assault on the role of an independent judiciary it signalled.
Opposition to Ford’s instant recourse to the clause had nothing to do with the validity or otherwise of the judge’s reasoning: it was the utter failure to show the necessity of leaping to such drastic lengths in response, when it was always available to the government simply to appeal the decision to a higher court — and, if an appeal would not resolve the question in time for the election, to seek a stay until the appeal could be considered.
The province’s justification — there isn’t time — was always somewhat nonsensical, as it depended upon accepting as given what was in fact in dispute: that cutting the council in half was a matter of such urgency that it could not be implemented for the next election, but must be made to apply to the election that was already under way.
But even if one accepted this circular argument as valid, it failed to answer why a stay could not first be sought — a matter of days at the most, and almost certain to be granted. If, after all, the lower court ruling was, as the province suggested, the handiwork of a rogue judge distorting the charter to suit his ideological agenda, it was all the more likely to be set aside at the first opportunity.
Only if you believed in the most paranoid fantasies of the Fordite fever swamp — that the entire judiciary are a nest of liberal elitists conspiring at every turn to thwart the popular will as embodied by the people’s elected representatives — could even a prima facie case have been made for escalating straight to notwithstanding. The court of appeal’s decision rather makes hash of that, too.
So the premier will get his way on his hasty, illconsidered effort to gerrymander elections to the city council on which he lately sat, but at the cost of looking even hastier and less-considered in his readiness to override the charter to force it through — a measure that was, it is now incontrovertible, as wholly unnecessary as it was contemptuous of democratic norms.
But of course this applies even to the less indefensible uses of the clause its defenders still imagine will one day arise — as opposed to the ways that governments in the real world keep using it.
The supposed clash between parliamentary supremacy and judicial supremacy that is invoked to justify it, the nightmare scenario of a democratic Parliament that wants only the public good being stonewalled by a runaway Supreme Court, is a work largely of the imagination. Ours is not a system of either parliamentary or judicial supremacy, but of constitutional supremacy, and has been since 1867.
The question is not, as it is often put, who will have the “final say”: in our system nobody gets the final say. It is, rather, more in the nature of a conversation. A judicial finding that a law is unconstitutional does not typically put an end to it. More often, that’s the beginning.
Decisions almost never turn on whether a law is valid in principle, i.e. in its very purpose. They’re about whether, in pursuit of its purpose, it overreached. Courts don’t often insist that a law may not breach charter rights to any degree, no matter how slight — just that it infringe rights only to the least extent necessary to achieve its desired end, and in proportion to the good thus achieved.
And courts usually don’t find fault with the whole of a law — only with particular sections of it. It’s then open to the legislature to redraft the offending section, to the extent of its overbroadness. Framing this process, then, as a simple matter of courts vs. Parliament, rather than courts working with Parliament, is a distortion.
Do judges sometimes get it wrong? Of course. But the notion that they always lean, so far as they err, in the direction of overturning legislation is simplistic nonsense. As often as not, they duck. If you really want to see “judicial activism,” have a read of the contorted rationales the courts commonly offer for upholding plainly unconstitutional legislation they happen to like.
In any case, courts were overturning bills on division of powers grounds long before the charter came along: no notwithstanding clause was around to save them. Indeed, the same Ontario government that insists on the primacy of the people’s elected representatives with regard to the charter is currently before the courts asking to have federal carbon tax legislation overturned. Parliamentary supremacy, like “states’ rights,” seems to mean something other than what it appears.