A FRIVOLOUS USE OF THE NOTWITHSTANDING CLAUSE

DOUG FORD, INTENT ON getting back at his former colleagues, arbitrarily cuts in half the size of Toronto council just months before a municipal election. The city, understandably, challenges that decision to in court, where a judge rules in its favour, overturning the socalled Better Local Government Act.

Ford, rather than accepting the rule of law or appealing the decision, pledges to invoke the Charter of Right’s notwithstanding clause for the first time in Ontario. It’s the equivalent of going nuclear over, say, a parking ticket.

Right off the hop, it’s a bad reason for an over-the-top response: the issue just isn’t that important. Or important at all, for that matter. There was simply no reason for Ford’s decision, let alone to rush into changes when candidates were already preparing for the October election. If the changes could be justified as more than spite, then there would be no harm in announcing his intention for the legislation to take effect at the next election, with or without the pretence of public consultations – a usually perfunctory facade perpetrated by many governments to legitimize their (often poor) already-made decisions.

That Ford never mentioned the issue before rolling it out pretty much rules out the idea that he won a mandate for such changes.

What Ford is arguing is that he’s the premier, so he gets to rule essentially by decree, the law be damned.

Critics were quick to point out the unhealthy precedent the move sets in attempting to put the government above the law. That flies in the face of government accountability, in the kind of lip-service accountability would-be populist leaders like to run up the flagpole and salute, saluting and other forms of unwarranted pomp and circumstance being a priority for people of Ford’s ilk.

The move does, however, play to the conservative trope about “activist judges” blocking legislation that seeks, for instance, to promote police-state powers, roll back rights for gays and other minorities or suppress certain classes of voters. Governments more intent on satisfying the base rather than doing what’s best for the public have sometimes found themselves stymied by oh-so-pesky laws. The usual response is to appeal court decisions or to grouse about the situation, but move on.

Now there’s Doug Ford, who appears to be fine with fiat rule – what he says goes, and he’ll invoke the rarely used notwithstanding clause for the most mundane things to see that it does.

That in itself should be worrisome. But even those who support Ford should be mindful that such reckless politicking cuts both ways: his actions open the door to future governments of other stripes who might invoke the clause to wipe out conservative policies and practices they deem incompatible with their philosophies.

It’s all well and good to trample over the rights of those you don’t like, but when the positions are reversed and it’s your neck under the boot, you lose any authority to complain, let alone appeal to the courts for help.

There may be some words of advice/warning that stem from an earlier authoritarian time, something along the lines of “First they came for Toronto council ... Then they came for me – and there was no one left to speak for me.”