GOING HIS OWN WAY

Premier Doug Ford is invoking Ontario’s powers to override a court decision against plans to cut the size of Toronto’s city council //

Superior Court Justice Edward Belobaba’s Monday morning decision to strike down Premier Doug Ford’s plan to cut city council to 25 wards has once again thrown the October municipal election into chaos — and that was before Ford dropped a bombshell response.

Ford told reporters Monday he will invoke section 33 the Charter of Rights and Freedoms — the controversial “notwithstanding clause” — to repass the bill to cut council, recalling the legislature on Wednesday.

Here’s everything you need to know about the notwithstanding clause, how it might apply and what may happen next:

What is the notwithstanding clause?

The clause was intended as a kind of “safety valve” to give Ottawa or the provinces a mechanism to overrule Charter rights that conflict with their legislative agenda, said University of Waterloo associate professor of political science Emmett Macfarlane.

“It was part of the compromise that allowed the Charter of

Rights to exist,” he said.

The clause has been controversial since it was accepted as part of the Charter at the 1981 First Ministers’ Conference, during a national debate over repatriating the Canadian constitution.

The clause “allows Parliament or the provincial legislatures to effectively immunize legislation from Charter review for up to five years,” added Carissima Mathen, a professor of law at the University of Ottawa.

Does the notwithstanding clause even apply here?

According to a May 2018 parliamentary research paper, the notwithstanding clause deals specifically with two broad areas of the Charter: section 2, which deals with fundamental rights such as the freedoms of expression, conscience, association and assembly, and sections 7 through 15, which concern the right to life, liberty and the security of the person and a variety of legal rights.

Superior Court Justice Belobaba’s Monday decision refers to section 2(b) of the Charter — freedom of expression. which means the clause should apply, said Mathen.

Can Ford invoke the notwithstanding clause?

Yes. All Ford needs to invoke the clause is to pass a vote in the legislature, Mathen said.

“He can do it because he has a majority government, that’s all he needs to do,” she said.

What’s the timeline?

If Ford wants to preserve Bill 5 for the rapidly approaching election he’ll have to reintroduce it “immediately,” Macfarlane said.

“It would have to be lightning fast,” he said.

Has the notwithstanding clause ever been invoked in Ontario?

No. “It’s only very rarely been used outside of Quebec,” Macfarlane said.

Is there anything city can do to stop Ford from using the clause?

No. The city can’t prevent Ford from invoking the clause.

The clause will only apply from the date it’s passed.

As long as Ford can pass it before the Oct. 22 election date, the election should go forward on the basis of 25 wards instead of 47, Mathen said.

If Ford invokes the notwithstanding clause, can the city appeal?

No. There’s nothing the city can do to repeal a law that invokes the notwithstanding clause, both Macfarlane and Mathen said.