Premier Ford didn’t make the mess
The current mess in Ontario is not just the work of one man. It is the product of all that has conspired to concentrate so much power in one man, that he could make such a mess. It is the predictable consequence of a number of deep structural flaws in our democracy, each one malign in itself, but which together can bring the whole edifice tumbling down.
Consider: a man with a shady past and disgraceful record is able to seize control of the Progressive Conservative Party of Ontario without the support of even a plurality of its members, still less of the caucus he then presumes to lead (and whose careers he now controls). He wins a “majority” in the ensuing provincial election with 40 per cent of the vote, by means of which he proceeds to personally and unilaterally rewrite the election laws for an entirely different level of government — for besides subordinating party to leader and legislature to executive, we have also contrived to make municipal governments creatures of the province.
At no time has he mentioned any of this, in either the leadership race in which he finished second or the election campaign in which 60 per cent of the vote went to other parties.
He has no mandate from anyone, least of all the citizens affected. Yet because our system vests such extraordinary power in the office of one man, he can impose his will on cabinet, caucus, legislature, city and province, more or less by fiat.
Even the courts, the last line of defence against arbitrary rule, cannot stop him. For while we have passed a Charter of Rights, proclaiming our supposed belief in limited government, we have embedded within it a clause that allows governments to overrule those same limits. He invokes it, again imposing his will on cabinet, caucus etc., validating by fiat what he had earlier decreed by fiat.
And he does all this in the name of “democracy.”
This would be objectionable even if the legislation were rightly considered, urgently necessary, likely to succeed. It is none of these. It rests, rather, on a series of increasingly dubious propositions, supported less by evidence than assertion, not so much even asserted as assumed: that Toronto’s city council is “dysfunctional,” or more so than most elected bodies; that it is the job of the province, rather than the city’s voters, to “fix” it; that cutting the number of council wards in half is the required fix; that if it were, it must be done now, this instant, with an election under the old rules already under way; that so urgent is it that it be done now that nothing less than emergency legislation overriding the Charter is required.
There is no such emergency. No crisis would ensue if council were elected on the previous plan of 47 wards; neither would Toronto’s problems suddenly melt away if it were altered to the premier’s preferred 25. That an Ontario Superior Court judge found the premier’s plan in violation of the Constitution is doubtless inconvenient, but the laws do not exist to suit the convenience of our rulers.
Did the judge err in law? Then appeal it. There isn’t time? Yes there is: the province was before a higher court Tuesday asking for a stay of the judge’s decision, which would allow elections to proceed on the premier’s plan. There was no case for invoking the notwithstanding clause, even if you accept the need for this needless law, even if you accept as urgent what is manifestly nothing of the kind.
Does he have the power to do so? Of course. That does not make it right. Is it constitutional, part of the very Charter it overrides? Indeed. That does not make it legitimate. The Queen is part of the Constitution as well. No law can pass without her assent. But if she were to regularly refuse assent to laws there would be very little left of our democracy. The same applies to notwithstanding: though each use of it would be legal in itself, the effect of its repeated use would be to eviscerate the Charter. Once would be dangerous enough. But Ford has vowed to use it repeatedly, and beyond him lie other premiers, with other laws they would like to preserve from Charter scrutiny.
But again: the problem is not Ford, so much as the powers he has been given. It’s all very well for the people responsible for its inclusion, the surviving participants in the 1981 constitutional round, to protest that this was not what they had in mind: that the clause was meant to be used only in “exceptional situations,” as a “last resort.” But if they did not intend it to be used in such a loose fashion, they should not have drafted it so loosely; if they did not anticipate a Ford would one day come along, they should have. Leave a loaded gun lying around, somebody is bound to pick it up and use it.
What we have here is a case of constitutional cognitive dissonance. The whole premise of the Charter was that governments cannot be trusted with power: left unchecked, they will abuse it. And the whole premise of the notwithstanding clause was that they can be. It was not just likely that trust would one day be abused. It was all but inevitable. Or as the poet Valéry said, “power without abuse loses its charm.”