Have the Doug Ford Conservatives just made a major miscalculation — using the notwithstanding clause to trash democratic rights?

Jun 14th, 2021 | By | Category: In Brief
Tks to Barista at Red Star Café.

SPECIAL FROM THE DEMOCRATIC DESKTOP OF CITIZEN X, BUCKHORN, ON. MONDAY, JUNE 14, 2021. A great many individuals and organizations down in The Smoke (also capital city of Canada’s most populous province) are up in arms today.

Using the so-called “notwithstanding clause” in section 33 of the Constitution Act, 1982, the Ford government is going ahead with its controversial election spending legislation, despite a court judgement that this violates the Canadian Charter of Rights in earlier sections of the Constitution Act, 1982.

According to Robert Benzie, Queen’s Park man in charge for the Toronto Star, the legislation, newly refreshed by references to the notwithstanding clause “should pass this afternoon.” The Ford government does have a majority of seats in the Legislative Assembly. And the voice of parliament — the supreme authority in our “Westminster” system of government — is clear.

Changing face of Ontario’s capital city in The Smoke — east to Bathurst from Palmerston just north of Bloor. Photo by Michael Seward, June 2021.

Just to round out the theory, it is the supremacy of parliament in our kind of parliamentary democracy that the notwithstanding clause is meant to guarantee. And now as of 4:31 PM EDT The Canadian Press is reporting that Mr. Benzie was right : “Ontario passes election spending bill with notwithstanding clause … The Ontario government has passed a bill limiting third-party election advertising by employing a rarely used legislative power … Bill 307 used the notwithstanding clause to reintroduce parts of a law struck down by a judge last week … The clause allows legislatures to override portions of the charter for a five-year term … The bill passed this afternoon after a marathon weekend debate in which opposition politicians argued the government was trying to silence criticism ahead of next June’s provincial election.”

I wouldn’t pretend to any deep knowledge on this issue. And, like so much else, it does strike me as at least somewhat more complex than the most aggressive arguments of all three opposition parties in the Ontario legislature might suggest.

In the Globe and Mail this morning, eg, Christine Van Geyn of the Canadian Constitution Foundation and Scott Hennig of the Canadian Taxpayers Federation noted that “Kathleen Wynne’s Liberal government first brought in a law in 2016 that gagged citizens from using paid means of amplifying their voices” before elections.

From Theo Moudakis in the Toronto Star.

But Van Geyn and Hennig also point out that the new Ford Conservative government law of 2021 goes far beyond the earlier Wynne government rules on election spending. The Bill 307 that has now been duly passed by the provincial parliament means that “today, with just under a year to go before the next Ontario election, citizens are effectively barred from spending their own money to voice their opinion on any political issue.” And while “Mr. Ford’s target may be the union coalition Working Families, the impact of the law is far broader, and limits comment on essentially any public policy issue when these comments matter the most.”

I would agree as well that the notwithstanding clause in the Constitution Act, 1982 is not meant to be an ordinary or customary exercise of parliamentary sovereignty. If it were there would be no point in having a charter of guaranteed human rights in “a free and democratic society” that legislatures cannot just override whenever they like.

Changing face of Ontario’s capital city in The Smoke — eastern Beaches, just northwest of the Balmy Beach Club. Photo by Jeanne MacDonald, June 2021.

(And in the land of the mother of parliamentary democracies itself, the eminent journalist Neal Ascherson has recently complained that the “idiotic doctrine of parliamentary sovereignty — the late 17th-century transfer of absolutism from kings endowed with divine right to an elected assembly — excludes any firmly entrenched distribution of rights. Popular sovereignty in Britain is a metaphor, not an institution.”)

The ultimate practical political question, however, is will the Ford government that has now used the notwithstanding clause to override Charter rights find itself in trouble with the people of Ontario it so often claims to be supporting in the June 2, 2022 election, a little less than a year ahead?

This past Saturday Chris Hall, one of the more astute political analysts at CBC News, pointed out that both the Quebec and Saskatchewan provincial governments have already used section 33 of the Constitution Act, 1982, without suffering any retaliation from voters at election time. The Ontario PC brain trust supporting the Ford government has apparently calculated that something similar will now happen in Ontario.

One counter-argument is that this is the first time the notwithstanding clause has been used north of the Great Lakes. And unlike either Quebec or Saskatchewan, Ontario is a province that has traditionally put Canada first — and that especially values the Charter of Rights masterminded by Pierre Trudeau’s federal government some four decades ago.

The Bill 307 the Ford government used its current parliamentary majority to push through today just might prove to be the big mistake that will finally crystallize the popular opposition to rule by the Ford Nation that has been growing for some time, and ultimately throw the government from office at last on June 2, 2022!

On the other hand, I wouldn’t bet the family farm on this prospect just yet. Chris Hall has a point. Moreover, for all his growing unpopularity, Doug Ford has yet to discover an opposition leader who can clearly take him (and especially his Ontario PC party) down. Inside, hiding from the pouring rain today, I googled the 2018 Ontario election results. On some rough figuring I calculated that the PC s won as many as 33 of the 124 seats in the Ontario Legislative Assembly with more than 50% of the riding vote back then. No other party has quite this kind of record.

Mitzie Hunter, Kathleen Wynne, and Mike Schreiner in Ontario legislature, Thursday, June 10, 2021.

Personally, like many others in the province (if not enormous numbers where I’m living now, in the wonderful Kawartha wilderness, far away from the anxieties and obsessions of The Smoke) I think Doug Ford is altogether the wrong person to be presiding over the current parliamentary democracy in Canada’s most populous province.

But I wish I could be more confident, for the moment at least, that he won’t still be around after June 2 next year — even though I do believe that Bill 307, finally passed by the Ford PC parliamentary majority today, does use the notwithstanding clause to trash and trample on the democratic rights of the people of Ontario. And that is of course a bad and perhaps even appalling thing, especially in the 2020s!

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