Ford is wrong, but this isn’t the end of democracy in Ontario

Ontario Premier Doug Ford’s decision to override the courts in order to slash the size of Toronto City council is singularly wrong-headed.

It commits Ford’s Progressive Conservative government to a course of action that is both ill-considered and unnecessary.

But Ford’s use of the constitutional override known as the notwithstanding clause does not augur the end of democracy in Ontario. Section 33 of the Charter of Rights and Freedoms is a valid and necessary part of the Constitution that has been used by other provinces — most notably Saskatchewan and Quebec — to shelter legislation from judicial second-guessing.

In 1988, a Quebec Liberal government used the notwithstanding clause to protect its French-language sign laws. In 1986, a Saskatchewan Conservative government used the override to keep the courts from ruling a back-to-work law for public service workers unconstitutional.

Yet democracy is as alive in these provinces as it ever was.

The clause itself is a key element of the political compromise that led to the patriation of Canada’s Constitution in 1982 and the addition to that document of the Charter of Rights and Freedoms.

Some premiers, most notably Saskatchewan New Democrat Allan Blakeney and Alberta Progressive Conservative Peter Lougheed, worried that a constitutionally entrenched Charter could, as in the U.S., prevent legislators from enacting socially useful legislation.

In the U.S. Supreme Court decisions have granted corporations civil rights originally meant for individuals. For instance, the 2010 Citizens United decision gutted laws meant to control campaign financing by declaring corporate election spending a form of constitutionally protected free speech.

To prevent Canadian governments from being hemmed in by such judicial overreach, several provinces, led by Ontario, suggested the notwithstanding clause as a compromise. It would give Parliament and provincial legislatures the ability to override some, but not all, civil rights for a period of five years.

The assumption was that it would be used sparingly — which it has been. But there was never an understanding that it would not be used at all. In fact, there are sometimes good reasons for resorting to the constitutional override

In 2005, Howard Hampton, then leader of the Ontario NDP called on the province’s Liberal government to use the notwithstanding clause to protect medicare.

Hampton made this perfectly reasonable demand in the wake of a Supreme Court decision that came perilously close to declaring medicare unconstitutional.

The constitutional attack on medicare continues, these days in a British Columbia courtroom. And I suspect that a good many those castigating Ford for using the notwithstanding clause in the Toronto city council case would change their tune if medicare were at stake.

None of this is meant to justify Ford’s bizarre decision to upend Toronto council in the middle of a municipal election campaign. He could have avoided all of this trouble if he had allowed the October election to continue as planned and brought in his reforms before the next one, four years from now.

But once embarked upon this wrongheaded course, Ford was trapped. He could have acceded to Superior Court Justice Edward Belobaba’s controversial and at times whimsical ruling that he abandon his plans.

Or, as he did, Ford could have appealed the decision to a higher court. But an appeal takes time and the election of Toronto council is set to take place next month.

So Ford is taking the simplest path available to him. He is invoking the notwithstanding clause. Constitutionally, it is a legal thing to do. Given his majority in the legislature, it is also as democratic as anything else.