Ford may use notwithstanding clause again
Plan to override court on Toronto council-cutting seen as attack on courts
TORONTO — Doug Ford’s unprecedented move to invoke the notwithstanding clause to ensure a reduction in the size of Toronto’s city council has prompted some observers to question the Ontario premier’s grasp of judicial matters and muse as to whether his aggressive use of the constitutional provision is a sign of things to come.
Other political voices, meanwhile, are calling for a broader discussion about the status of cities under the Constitution, arguing the document is illequipped to deal with the present-day realities faced by municipal governments.
The latest concerns were triggered by a series of events on Monday that began when a judge struck down provincial legislation slashing the size of Toronto city council in the middle of an election campaign.
Superior Court Justice Edward Belobaba ruled that Bill 5 was unconstitutional as it violated freedom of expression rights of candidates and voters. Hours later, Ford promised to appeal the decision and forge ahead with his council-cutting plan by invoking the notwithstanding clause, which gives governments the power to override parts of the charter for a five-year term.
Ford’s response and his remarks about the functioning of the judicial system raised eyebrows in several circles.
The premier stressed that judges are appointed, while he was elected.
And he said his Progressive Conservative government — which faces other legal challenges, including one over its move to scrap a modernized sex-ed curriculum — would be prepared to use the notwithstanding clause again in the future.
“What is very concerning moving forward is if our decisions in changing the law to make this province better ... is being shot down by the courts,” Ford said Monday. “That’s disturbing.”
Ford’s remarks sounded alarm bells for Vanessa MacDonnell, a constitutional law scholar at the University of Ottawa.
While she said a certain amount of tension between governments and courts is expected, the premier’s comments raise the troubling spectre of the notwithstanding clause being used to routinely ignore court rulings.
“That kind of relationship between political actors and the courts, one where the courts say one thing and what they say is persistently disregarded, that’s not what our constitutional system contemplates,” she said. “That’s really a big departure.”
MacDonnell said Ford’s willingness to launch such broad salvos at the court system mere months into his four-year mandate signals a stronger value for his own political agenda over constitutional rights, adding that repeated use of the notwithstanding clause would “inevitably” erode those rights over time.
University of Waterloo political science associate professor and constitutional law researcher Emmett Macfarlane agreed, stressing that while past leaders have publicly railed against court decisions, few, if any have openly challenged judicial authority as Ford appeared to do.
“He doesn’t seem to understand the purpose of our constitutional design,” Macfarlane said. “The constitution that is allowing him to invoke the notwithstanding clause is the same constitution that empowers judges with judicial review of the charter.”
Similar questions were raised by Toronto Mayor John Tory, who has called a special meeting of council to review what he acknowledged to be limited options to resist Ford’s latest moves.
“(Ford) is not thinking as carefully as he might about how our system works,” Tory said in a radio interview. “The whole setup of our Charter of Rights and Freedoms and the role courts play ... is deliberately meant to make sure that a government can’t just do anything it wants without anybody checking up on it.”
The dispute between Toronto and the province also prompted the mayors of other cities to question whether it was time to revisit how well the constitution serves Canadian cities.
The charter currently does not recognize municipal governments at all, deeming them to be entirely creatures of the province. As such, provincial governments are fully empowered to make sweeping changes to cities within their territory.
“Has it ever been more clear that we need an updated federalism that includes towns and cities?” Barrie, Ont. mayor Jeff Lehman asked in a tweet. “Not holding my breath, but the root cause here is trying to govern a urbanized country with an agrarian constitution. Can’t fix 21st century problems with a 19th century tool box.”
Macfarlane agreed, saying the Constitution — of which the charter forms a part — was developed when Canada was still a “fur-trading colony.”
Macfarlane said that while the federal government could reopen the debate through a constitutional amending formula, all provinces would need to be onside in order for any national change to take effect. Alternatively, he said, a province would have to reach a bilateral deal with Ottawa to limit its own powers, something most provinces would be reluctant to do.
Despite the complications, however, Macfarlane said there would be value in revisiting the issue.
“It’s high time we had that conversation,” he said. “I do think our constitution, in many different ways, is outdated and this might be one of them.”