Nine nasty days for democratic processes and institutions

Premier Doug Ford held a rare midnight session Monday to begin the second reading of Bill 31

On September 10, 2018 Premier Doug Ford rushed in where no Canadian First Minister had ever gone. A few hours earlier, the Superior Court had declared that Bill 5, cutting the size of Toronto City Council from 47 to 25 members in the midst of a civic election season, curbed freedom of expression by candidates and voters and was, thus, in violation of s.2(b) of the Charter. Doug Ford convened a press conference where, while invoking the Notwithstanding Clause of the Charter of Rights, he noted that he would not be shy about using the Clause in the future. His justification “I was elected, the judge was appointed” strikes at the heart of our democratic processes and institutions. Voices-Voix wishes to comment as strengthening these pillars of our democracy is one of its core commitments.

The Preamble to the Charter asserts that Canada is founded upon the principle that the rule of law is supreme. Section 52 of the Constitution says that the Constitution is the supreme law of Canada. For a First Minister to invoke the Notwithstanding Clause without a very serious considered reason but to disregard a Charter ruling from a court, is a cause for grave concern. The three politicians who negotiated the language of the Notwithstanding Clause, Jean Chretien, Roy McMurtry and Roy Romanow, published an open letter in response to Doug Ford, which reads:

“The three of us, representing our respective governments, negotiated the inclusion of the Notwithstanding Clause in the Charter of Rights and Freedoms in 1981.

The clause was designed to be invoked by legislatures in exceptional situations, and only as a last resort after careful consideration. It was not designed to be used by governments as a convenience or as a means to circumvent proper process. That was clear at the time, and it has been clear ever since. That is one reason it has never been used – even once over the last 37 years – by the Ontario legislature – a point of pride with the people of Ontario.

We agree with former Ontario Premier Bill Davis, who played such a vital role in patriating the Constitution and providing Canadians with a Charter of Rights: Doug Ford’s use of the Notwithstanding Clause does not meet this criteria.

We condemn his actions and call on those in his cabinet and caucus to stand up to him. History will judge them by their silence.”

Few would disagree with the point of this letter - that the Notwithstanding Clause is an exceptional tool to be used only as a last resort after careful consideration. The Superior Court had been shown no such process of careful consideration by the Attorney General. Nor did Doug Ford offer anything of the sort at his press conference.

On September 17, after an all-night session, the Ontario Legislature passed Bill 31, resurrecting Bill 5 and invoking the Notwithstanding clause. However, on September 19, the Ontario Court of Appeal granted a stay of the Superior Court’s ruling on the ground that there was a strong likelihood that the Superior Court had erred in law. At paragraph 11 of the judgment, the Court of Appeal concluded, “The application judge was understandably motivated by the fact that the timing of Bill 5 changed the rules for the election mid-campaign, which he perceived as being unfair to candidates and voters. However, unfairness alone does not establish a Charter breach. The question for the courts is not whether Bill 5 is unfair but whether it is unconstitutional. On that crucial question, we have concluded that there is a strong likelihood that application judge erred in law and that the Attorney General’s appeal to this court will succeed.” The Court of Appeal further noted that "while the change brought about by Bill 5 is undoubtedly frustrating for candidates who started campaigning in May 2018, we are not persuaded that their frustration amounts to a substantial interference with their freedom of expression [...] the change from 47 to 25 wards does not prevent or impede them from saying what they want to say about the issues arising in the election."

During the course of argument, the Attorney General had advised the Court that, should a stay be granted, the Government of Ontario would not take Bill 31 and therefore the Nothwithstanding clause to a final vote. In result, the Ford Government will have its way. The civic election in Toronto will proceed on October 22 with 25 seats in play, not 47. At the end of 9 days threatening our democratic processes and institutions, the Notwithstanding Clause will remain on the shelf for now …