Ford wastes po­lit­i­cal cap­i­tal on Toronto city hall battle

The Recorder & Times (Brockville) - - OPINION - — Peter Epp

Pre­mier Doug Ford is mak­ing a mis­take by in­vok­ing the notwith­stand­ing clause, a rarely used part of the Cana­dian Char­ter of Rights and Free­doms that al­lows pro­vin­cial leg­is­la­tures the abil­ity to over­ride ju­di­cial de­ci­sions.

The clause, Sec­tion 33 of the Cana­dian Con­sti­tu­tion, was in­cluded in 1981 be­cause of con­cern among then-pre­miers that ap­pointed judges might over­rule the will of elected mem­bers of pro­vin­cial leg­is­la­tures.

Que­bec was es­pe­cially keen on Sec­tion 33, yet the clause was im­me­di­ately in­voked in 1982 by the Yukon leg­is­la­ture. Its use by Yukon rep­re­sen­ta­tives has be­come an his­tor­i­cal foot­note, but Sec­tion 33 was used by the Na­tional Assem­bly of Que­bec, also in 1982, to retroac­tively amend ev­ery Que­bec law to en­sure they could never be chal­lenged by a court.

The use of the notwith­stand­ing clause by the rul­ing Parti Que­be­cois was rightly viewed as an out­ra­geous and cyn­i­cal at­tempt to muf­fle ju­di­cial com­ment, and Ford and his Pro­gres­sive Con­ser­va­tives are un­for­tu­nately court­ing a sim­i­lar re­sponse.

Ford’s use of Sec­tion 33 comes af­ter an On­tario Su­pe­rior Court judge struck down his gov­ern­ment’s Bill 5, the Bet­ter Local Gov­ern­ment Act, to stream­line the size and cost of Toronto’s city coun­cil.

Ford and his sup­port­ers point to the fact that Sec­tion 33 is a part of the Cana­dian Con­sti­tu­tion and its use is per­mit­ted in cases where the will of an elected leg­is­la­ture is over­ruled by an ap­pointed judge.

But there’s a greater is­sue here, and that’s Ford’s cred­i­bil­ity af­ter only a few months in of­fice and his abil­ity to wisely pick his bat­tles. He will win this battle by in­vok­ing Sec­tion 33, but he could lose the war.

This leg­is­la­tion is not worth the po­lit­i­cal cap­i­tal that he and his gov­ern­ment is ex­pend­ing. In­deed, this bill should never have been in­tro­duced, es­pe­cially so close to the Oc­to­ber mu­nic­i­pal elec­tion. It would have been bet­ter had the Con­ser­va­tives al­lowed the cit­i­zens served by Toronto’s city hall to de­ter­mine their city coun­cil’s size.

But by pur­su­ing this leg­is­la­tion to the bit­ter end, Ford is re­veal­ing the same kind of nar­row ide­o­log­i­cal de­ter­mi­na­tion for which Pre­mier Kath­leen Wynne be­came known. Wynne and her Lib­er­als re­li­giously pur­sued the Green En­ergy Act (to the bit­ter end) de­spite its im­mense cost and ques­tion­able con­tri­bu­tion to On­tario’s en­ergy se­cu­rity.

Ford rightly can­celled the Green En­ergy Act upon as­sum­ing of­fice. But he also needs to walk away from this leg­is­la­tion be­fore the fight to en­sure its sur­vival leaves him and his gov­ern­ment po­lit­i­cally dam­aged.

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