When Canada patriated its Constitution in 1981, Prime Minister Pierre Trudeau struck a compromise with wary Quebec nationalists by including a “notwithstanding clause” within the Charter of Rights and Freedoms. It allowed provincial and federal governments to opt out of the agreement in special circumstances. A few years later Quebec used Section 33 to bypass restrictions in bilingual laws; in 2000 Alberta invoked it to preemptively block federal legislation on same-sex marriage – a move the Canadian Supreme Court subsequently overturned. Otherwise the clause has hardly ever been used. Neither the federal government nor the largest province, Ontario, had ever invoked it – until this week, when Ontario premier Doug Ford ended decades of political restraint with characteristic impetuosity.
Ford’s government invoked the clause after a Superior Court ruled against its bill to reduce the size of Toronto City Council – shortly before an election was due. Had the ruling not used a Charter argument – the judge held that Bill 5 infringed on the Charter’s freedom of expression rights – the Section 33 override would not have been available. But it did, and so the province was presented with an unconventional escape route. That is important, for however distasteful Ford’s use of the clause may seem, its use was perfectly legitimate. What has stirred up controversy, in Ontario and beyond, is the casual manner in which Ford invoked the mechanism.
Conservative North American politicians frequently rail against “activist judges” – particularly when these “unelected” judicial overseers protect controversial rights such as the freedom to burn an American flag, access abortion, or to make unconventional religious or sexual choices. Commenting on the judgement against him, Ford noted “I was elected. The judge was appointed. He was appointed by one person, [former Liberal premier] Dalton McGuinty.” That remark is significant for two reasons: first, Superior Court justices are federally appointed, so the judge was actually chosen by former prime minister Paul Martin. More important, however, is Ford’s assumption that the recent provincial election – in which 40 percent of electorate didn’t vote, and only 40 percent of those who did chose him – justifies his override of the well-established checks and balances of constitutional democracy.
Benjamin Perrin, a former legal adviser to prime minister Stephen Harper, told the Globe and Mail: “You start out using the notwithstanding clause on something not a ton of people care a lot about – the size of the municipal government – and the next thing you know, it’s being used to override rights and freedoms for vulnerable minorities, such as members of the LGBTQ community.” Other legal scholars sounded similar warnings. The reduction of a city council is hardly a death knell for democracy, but the means by which Ford has sought to impose his will are, at the very least, problematically unconventional.
Ford’s decision is strikingly similar to President Trump’s use of executive orders. Both men have little patience for democratic norms and tend to treat criticism as in bad faith or as some sort of political opportunism. Their public comments and behaviour is often troublingly reminiscent of strongmen leaders in Hungary, India, Israel, Russia, and Turkey.
Citizens in less well-established democracies, like our own, should take note of the importance of a political culture that encourages restraint, that expects its leaders to engage with the give-and-take of democracy rather than impose their will by any means necessary. Ford and Trump both show that a society’s political culture – its willingness to settle its disputes with a proper respect for both the spirit and the letter of the laws – is no less important than any constitutional safeguard.