Scheer and Federal Conservatives Support Ford's Use of Notwithstanding Clause

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jerrym
Scheer and Federal Conservatives Support Ford's Use of Notwithstanding Clause

The federal Conservatives are supporting Doug Ford in his use of the notwithstanding clause to shrink the size of Toronto city council from 47 to 25 members. Conservative Leader Andrew Scheer's spokesman, Brock Harrison, said Ford is well within the law to use the notwithstanding clause because the constitution puts muncipalities under provincial authority. Several Conservative spokemen have said that Ford's use of the notwithstanding clause is popular with voters.

Scheer responded to a question of whether Doug Ford's use of the notwithstanding clause was a good idea with “Ultimately it’s up to the people of Ontario,” Scheer said in his first direct comment on Ford’s measure. “The Charter grants the people of Ontario the final say, it doesn’t matter what academics or pundits or politicians at other levels have opinions; ultimately it’s the people of Ontario that will have the final say on this.” (https://ipolitics.ca/2018/09/12/scheer-wont-say-if-fords-use-of-notwiths...)

The subtext of Scheer's statement is that there are no charter rights because if the people ultimately have the final say on the use of the notwithstanding clause by voting a government out of office, no right exists in defiance of a government's legislation and its willingness to use of the notwithstanding clause when checked by the courts. This means that any right can be overturned by invocation of the notwithstanding clause and this can only be overturned by the defeat of the government in an election. While this was, in reality, the situation before Ford's use of the notwithstanding clause and his proclamation that he intends to use it again when his decisions are overturned in the courts, the general belief was that the notwithstanding clause would rarely be used because voters would punish most if not all governments that used it with defeat in the next election due to the popularity of the Charter. 

I do not believe Scheer's statement is simply a case of not opposing an ally in public, but a signal that the federal and other provincial Conservative parties are ready to use the notwithstanding clause whenever they can profit from doing so.  Minority groups and issues would be the obvious targets, but this could be used even when a majority of the population voted against the Conservatives in an election or opposed them on an issue. After all, the former is what happened in Ontario where Ford only got 40% of the vote and he invoked the notwithstanding clause anyway because the opposition vote was split between two parties.

This approach can also be used to spike Conservative support and monetary contributions among the Conservative base by saying a Conservative government will support and implement their supporters' issues even when defied by the courts and a majority of voters, if they win the election. 

 

Mr. Magoo Mr. Magoo's picture

Quote:
a Conservative government will support and implement their supporters' issues even when defied by the courts and a majority of voters, if they win the election.

If I'm not mistaken, Ford (or any other Premier) can only invoke the notwithstanding clause in Charter matters.

Personally, when Ford first announced his intent to slash the size of Council, my first thought was NOT "but wait, the size of City Council is clearly dictated by the Charter".

gadar

jerrym wrote:

The subtext of Scheer's statement is that there are no charter rights......, no right exists in defiance of a ....government's legislation ..... This means that any right can be overturned by invocation of the notwithstanding clause and this can only be overturned by the defeat of the government in an election. Scheer's statement is simply ... a signal that the federal and other provincial Conservative parties are ready to use the notwithstanding clause whenever they can profit from doing so.  Minority groups and issues would be the obvious targets, ....... Conservative government will support and implement their supporters' issues even when defied by the courts and a majority of voters, if they win the election. 

Even Harper didnt have the balls to go where Sneer, enabled by Doug Dealer, is willing to go. And Harper hates the charter.

This is not going to end well. A lot of people's lifes are about to become victims of majority tyrrany.

I wrote in the Ontario thread that Ford's use of NWC makes me uncomfortable and scared. This is why.

My hate for the Cons is justified.

Mr. Magoo Mr. Magoo's picture

It might have been more interesting if the authors of the Constitution and the Charter had structured the notwithstanding clause such that any sitting government who wishes to ignore the Charter by using it would be forbidden from using the same Charter to support their own wishes.

For example, what if, by invoking the NWC in order to score some payback against Toronto Council, it meant that for the duration of his government, Ford was forbidden to suggest that an honest and timely sex-ed curriculum ignores the Charter rights to religion of his mouth-breathing followers?  Or could not argue that if a company says "we only hire women" then some man's rights are being trampled?  Or would be unable to say out loud that universities must adhere to "free speech" rules that he seems to think our Charter guarantees?

It would also be fascinating if any government were restricted to one NWC exception per electoral mandate.  Choose to use it now if you want, or save it for later if you think there will be a greater need for it, but only one,  like "smart bombs" in old video games.  After all, it really seems like most governments actually required LESS than one NWC challenge per mandate, so it's hard to see why any government should need four or five or ten of them.

Too late, I know.

jerrym

Here's more evidence that right-wingers see the use of the notwithstanding clause as a very useful tool in overcoming what courts determine are Charter rights. On Power and Politics' (former) Premiers League discussion:

Christy Clark supported Ford and says she expects to see legislatures "move in and act as the highest court in the land" much more often by invoking the notwithstanding clause. She also said that Trudeau should use "whatever legislative hammer he can" to ensure the Trans Mountain pipeline is built;

Brad Wall supported Ford because in his view governments should be the final decision-makers. He also said he did not consider it a big deal or lose any sleep when he invoked the notwithstanding clause to allow public funding of non-Catholics to attend Catholic schools.

Jean Charest also supported Ford and said it's a matter of political opportunity whether or not you use the notwithstanding clause. 

 

JKR

Mr. Magoo wrote:

Personally, when Ford first announced his intent to slash the size of Council, my first thought was NOT "but wait, the size of City Council is clearly dictated by the Charter".

I think the constitutional issue is not whether a provincial government has the right to determine laws concerning municipal elections as it is clear that provinces have jurisdiction over municipalities. I think the issue is whether a government has the right to change election laws AFTER an election has begun. People are engaged in their right to free expression once an election has begun so a government cannot then arbitrarily alter election laws after an election has begun as people are already participating in their right of expression. I think it is obvious that governments should never alter the rules of an election AFTER it has begun.

Mr. Magoo Mr. Magoo's picture

Quote:
I think the issue is whether a government has the right to change election laws AFTER an election has begun. People are engaged in their right to free expression once an election has begun so a government cannot then arbitrarily alter election laws after an election has begun as people are already participating in their right of expression. I think it is obvious that governments should never alter the rules of an election AFTER it has begun.

I agree with this idea 100% -- you can't change the rules of the race once the horses are out of the gate -- but is that why the Charter came into it?  Has my right to expression been denied if I have to choose one of 25 candidates instead of 47?

Again, I vigorously oppose Ford's vendetta.  But I don't really see how it infringes on our Charter rights.  What if, instead, we just focus on everything else that's wrong with it?

JKR

Mr. Magoo wrote:

Quote:
I think the issue is whether a government has the right to change election laws AFTER an election has begun. People are engaged in their right to free expression once an election has begun so a government cannot then arbitrarily alter election laws after an election has begun as people are already participating in their right of expression. I think it is obvious that governments should never alter the rules of an election AFTER it has begun.

I agree with this idea 100% -- you can't change the rules of the race once the horses are out of the gate -- but is that why the Charter came into it?  Has my right to expression been denied if I have to choose one of 25 candidates instead of 47?

Again, I vigorously oppose Ford's vendetta.  But I don't really see how it infringes on our Charter rights.  What if, instead, we just focus on everything else that's wrong with it?

I think candidates running in a 47 seat election by necessity have a different message and communication strategy than candidates running in a 25 seat election over the same territory as the new ridings cover different areas and thus different issues. The candidates that were running in the legal 47-seat election tailored their communication and messages to those specific ridings and those candidates and their supporters have been unfairly harmed by having their campaign messages and communication strategy weakened by the arbitrary changing of the ridings. All of the communication that the candidates were making in the 47 seat election will have to be altered or abandoned in this new 25 seat election. That would infringe on the right of free expression of all those who engaged in the legal 47-seat election.

Mr. Magoo Mr. Magoo's picture

Quote:
I think candidates running in a 47 seat election by necessity have a different message and communication strategy than candidates running in a 25 seat election over the same territory as the new ridings cover different areas and thus different issues. The candidates that were running in the legal 47-seat election tailored their communication and messages to those specific ridings and those candidates and their supporters have been unfairly harmed by having their campaign messages and communication strategy weakened by the arbitrary changing of the ridings. All of the communication that the candidates were making in the 47 seat election will have to be altered or abandoned in this new 25 seat election.

OK.

Quote:
That would infringe on the right of free expression of all those who engaged in the legal 47-seat election.

In the context of what we would call "free expression", how exactly has any candidate's "free expression" been denied?

If they are dead-set against new stop signs, can they say so?

If they believe that Toronto needs to have more bike lanes, can they say so?

That's literally all I'm arguing against -- the idea that this somehow denies anyone a Charter right.

If some voter believed that Toronto should have 48 council seats instead of 47, would they be correct, de facto, because to have fewer seats (47 instead of 48) is necessarily a denial of the electorate's rights?  Why not 48?  Why not 49, if 48 is a right?

jerrym

Going beyond this case, many constitutional experts are concerned that use of the notwithstanding clause by Ford and his statement that he is quite willing to use it again, will foreshadow much greater use of the clause to overturn Charter rights. Scheer's support of Ford and statement the people can overrule the notwithstanding clause by voting the government out of office suggests he is ready to use it, as does the statements of right-wing former premiers Christy Clark, Brad Wall, and Jean Charest in post #5.

Tom Axworthy, who helped negotiate the Charter, and constitutional law professors Wayne Mackay and Vanessa MacDonnell have all expressed concerns over whether Ford's use of the clause on such a small issue will lead to it being used much more often to overrule Charter rights.

When Pierre Trudeau's cabinet met to debate the inclusion of the notwithstanding clause in the Constitution nearly 40 years ago, there was a significant minority who argued that political leaders would always be tempted to use it. But "the optimists" in the room thought it would be used rarely yet judiciously — that premiers would be constrained by their reluctance to overturn fundamental rights, according to the former prime minister's principal secretary.

"And by and large, that has occurred. Until Ford," said Tom Axworthy, who advised Trudeau during the Constitution consultations. Now Axworthy fears that Ontario Premier Doug Ford's promise to invoke the clause — for the first time in the province — may put more pressure on other governments to use it.  "The worry is now, with Ontario announcing this, that this will embolden, if not premiers, lots of other activists on lots of other issues who don't like this [or that] particular court ruling … they'll start saying: 'Let's use the notwithstanding clause. Doug Ford did," he said. 

It's a fear shared by constitutional expert Wayne MacKay, professor emeritus of law at Dalhousie University. In an era of of populist politicians, using the notwithstanding clause may no longer be considered politically dangerous, MacKay said.

"[It's] maybe going to be seen as a politically good thing to do — that maybe you're not going to, as traditionally viewed, lose votes by setting aside the charter," he said. "I think it is a legitimate concern, because of the odd times in which we live in, in terms of people like Trump and others, who are able to appeal to a certain segment of the population that aren't necessarily very rights-focused." ...

Political leaders have generally been reluctant to use the notwithstanding clause, which is viewed by many as politically toxic. It's been invoked more than 15 times, and mostly in Quebec, which included it in every piece of legislation from 1982 to 1985 as form of political protest.

"The perception is that when you invoke the notwithstanding clause, you've decided to prioritize political expediency over rights," said Vanessa MacDonnell, a constitutional law expert and associate professor at the University of Ottawa. 

"That's the dominant feeling people have, which is why it really hasn't been used much. So it's exceptional that Ford has said that he intends to use it." The convention has been that it only be used "on the most important possible issues imaginable after a very fair process of debate," said Axworthy, a distinguished fellow at the Munk School of Global Affairs and chair of Public Policy at Massey College. ...

Some premiers, such as Alberta's Ralph Klein, have been tempted to use the clause on social issues such as same-sex marriage, he said, but no one has carried through. 

"I could not have foreseen it being imposed, in my worst nightmares, over an issue like the size of a council for Toronto," Axworthy said.

MacKay, who isn't opposed to the use of the clause, agreed that it was meant for issues such as the War Measures Act, language, or those of political and cultural significance. "I can't imagine in the complex, lengthy constitutional negotiations that there was a single person who thought, 'Gee, maybe they'll want to change the number of city councillors. So let's have this clause just in case.'"

https://www.cbc.ca/news/canada/toronto/doug-ford-notwithstanding-clause-...

 

JKR

Mr. Magoo wrote:

Quote:
I think candidates running in a 47 seat election by necessity have a different message and communication strategy than candidates running in a 25 seat election over the same territory as the new ridings cover different areas and thus different issues. The candidates that were running in the legal 47-seat election tailored their communication and messages to those specific ridings and those candidates and their supporters have been unfairly harmed by having their campaign messages and communication strategy weakened by the arbitrary changing of the ridings. All of the communication that the candidates were making in the 47 seat election will have to be altered or abandoned in this new 25 seat election.

OK.

Quote:
That would infringe on the right of free expression of all those who engaged in the legal 47-seat election.

In the context of what we would call "free expression", how exactly has any candidate's "free expression" been denied?

If they are dead-set against new stop signs, can they say so?

If they believe that Toronto needs to have more bike lanes, can they say so?

That's literally all I'm arguing against -- the idea that this somehow denies anyone a Charter right.

If some voter believed that Toronto should have 48 council seats instead of 47, would they be correct, de facto, because to have fewer seats (47 instead of 48) is necessarily a denial of the electorate's rights?  Why not 48?  Why not 49, if 48 is a right?

They don't have a right to a certain amount of seats but they do have a right to have the election rules set in place before the election starts. Those rules include the number of seats and their boundaries.

In FPTP elections candidates tailor their message to the specific riding they're attempting to win. So for example, in the 47-seat election a candidate could have made their primary issue adding a bike lane down a small street in their small riding. Switching the election to a 25-seat election, after the election has started, may make this issue no longer a winning issue for the candidate as it may not be a popular enough issue in the larger riding. The candidate in question has based his message on the 47-seat riding and because the government has changed the rules so late in the election it is too late for the candidate to dissasociate themselves from the ideas they expressed during the earlier portion of the election. If the election is changed to a 25 seat election the candidate also has to recalibrate their message for the new riding and this has a negative impact on their ability to effectively express themselves as they may not have the time or inclination to recalibrate their message in the middle of an election. Such a candidate may decide to drop out the election because the government has unfairly tilted the election against their message. This unfair process obviously curtails the free expression of the candidate in question.

jerrym

Andrew Coyne says many Conservatives have been against Charter rights since they were created in 1982 and see Ford's use of the notwithstanding clause as providing an opportunity to reassert the supremacy of Parliament over these rights. He cited several examples of Conservatives tip toeing up to using the notwithstanding clause to overturn Charter rights, including Harper on assisted dying and several other issues where the courts ruled against him, but stopping because he feared the electoral consequences.

In 2017 former premier Brad Wall promised to use the clause to override a court order mandating that the provincial government stop paying for non-Catholics to go to Catholic school. He saw it as part of his government’s current commitment to partially fund some 26 faith-based schools that aren’t sheltered by the Constitution.

There are hints Quebec may use the notwithstanding clause to protect its ant-niqab law.

Outside of Quebec, only Saskatchewan has lawfully proclaimed a bill invoking the notwithstanding clause. Premier Grant Devine wielded it in 1986 in order protect a back-to-work law from Charter scrutiny by the Supreme Court.

Yukon introduced a bill invoking the clause to protect a land development measure. However, it was never proclaimed.

Alberta threatened to use the clause to deny compensation to victims of forced sterilization. And a private member’s bill in Alberta, with the support of the government, purported to invoke the notwithstanding clause to block same-sex marriage. This was useless as provinces have no Constitutional jurisdiction over the definition of marriage.

Though not since the turn of the century, Quebec has invoked the notwithstanding clause a number of times. This was due to having been shut out of the 11th hour deal in 1981 that saw premiers resistant to the Charter get the notwithstanding clause in return for agreeing to a stipulation that it must have a five-year sunset clause. ...

In order to protect the rights of politically vulnerable minorities, Ottawa and Ontario won the concession that any government opting to override Charter rights would have to consider carefully whether it was confident of successfully defending this move come the next election.

Is Quebec about to use the clause?

There have recently been hints that Quebec might wall off its niqab law from the Charter via the notwithstanding clause. ...

A onetime aide in Grant Devine’s government, recently retired Saskatchewan premier Brad Wall, mused publicly about using the notwithstanding clause in 2015 to protect an essential services emergency law in response to a Supreme Court ruling against the province.

https://nationalpost.com/pmn/news-pmn/the-sparse-use-of-canadas-notwiths...

 

jerrym

David Climenhaga suggests Scheer has several reasons for not coming out against Ford on the notwithstanding clause. 

So what does Scheer have to say in defence of the fundamental rights of Canadians? He sent out his spokesthingy, Brock Harrison, to say Ford's antics are within the law.

Here's how CTV explained it: "Scheer would not say whether he thinks Ford's decision this week was an appropriate use of the measure, saying it is up to the people of Ontario to make that call, not pundits, academics or politicians from other levels of government." ...

He may be dropping hints to his social conservative followers he's not about to pay attention to any lines drawn by the courts on topics like LGBTQ and abortion rights. ...

One of the few things Scheer said that was actually properly quoted last night ... 

"We're working on our platform right now and we're confident we'll be able to implement the types of proposals that we're working on right now through the normal legislative process." (Emphasis added.) And if you can't implement them through the normal legislative process? No answer provided.

This tells us everything we need to know about the man. That he must be considered a potential prime minister makes him more dangerous than Ford, despite his pipsqueak presentation style. ...

Then there's Jason Kenney, leader of the Opposition in Alberta, another social conservative who famously demanded Alberta use Section 33 to prevent the courts from enforcing gay rights because, well, because he felt like it.

What about other prominent Conservative office holders? So far, all we hear is crickets.

http://rabble.ca/blogs/bloggers/alberta-diary/2018/09/why-wont-andrew-sc...

JKR

Expert warns province’s use of notwithstanding clause to cut Toronto wards could result in ‘illegitimate city council’

https://www.thestar.com/news/queenspark/2018/09/13/raucous-debate-underw...

Quote:
Beyond that, she said the Conservative government could end up having to effectively run the city if the legislation passes, 25 councillors are elected, and then the province loses at the Court of Appeal or in the Supreme Court.

“You could say it’s (sitting) illegally and therefore we would have to pass more statutes to ensure the legality of it,” said the Ottawa-Vanier MPP, noting residents could even challenge having to pay property tax increases approved by an “illegitimate city council.”

“The legislature would have to come back to validate whatever actions city council would have made and that would create further chaos.”

Democracy is baked into the Constitution and the notwithstanding clause cannot be used to overrule democratic elections. That could still leave the province vulnerable to future constitutional challenges to which the notwithstanding clause would not apply.

voice of the damned

^^ I don't think there's any real comparison between Ford using the NWC to impose an ostensible cost-cutting measure on a city that lots of Ontarians likely regard with indifference at best, and a future Scheer government using it to quash glbqt and abortion rights at the federal level. There's a reason why Harper never touched those issues, even when he had a commanding majority.

Kenney in Alberta MIGHT try to use 33 to roll back progress on social issues, but even then, I think he'd quickly realize that most Albertans had voted UCP to get Notley out, not because they had some overwhelming desire to go Back To The Bible.

voice of the damned

^ I should say that I can imagine a future federal government(likely Conservative) using the NWC to overrule court decisions viewed as giving too many rights to non-citizen migrants and refugees, who tend to be less popular with the general public than gays or women seeking abortions. Also, using it to roll back suspects' rights in criminal cases would probably be a winner.

jerrym

CAQ looks to be on the route to victory in the Quebec election. Former PQ cabinet minister and current CAQ leader Francois Legault has said that the a CAQ government will try to win new powers from the federal government in Phase One of its rule, followed by Phase Two, without eleaborating on what Phase Two would be. CAQ is also aligned with the federal Conservatives, who are disposed to give him more powers.

However, the Conservatives may not win federally or they may not be willing to give Legault all the powers he wants.  It would not surprise me if, knowing the history of the use of the notwithstanding clause in Quebec and having seen Conservatives open to its use after Ford used it in Ontario, CAQ used the notwithstanding clause to overturn any Trudeau government court victories based on the Charter. If Trudeau challenged him, he could go to Phase Two. Is Phase Two a push for independence, maybe in a second term, follwed a referendum?

The Conservative Party, under the leadership of Andrew Scheer, has picked up on a number of the CAQ’s proposals to tailor the platform it will present to Quebec voters in the 2019 federal election. It seems there would be a natural alliance to be formed between the CAQ and the CPC on a number of issues. ...

“We have a pragmatic and step-by-step approach. We want Quebec to make gains,” CAQ MNA Simon Jolin-Barrette said in an interview. “If, on Oct. 1, Quebeckers support the CAQ’s nationalist project, it will send a very clear message to Ottawa that they want greater autonomy and power inside the Canadian federation.”

There is an obvious connection between the CAQ’s key demands and the positions adopted by the federal Conservative Party as part of its Quebec strategy. Under Mr. Scheer, the Conservative Party would negotiate a deal under which the Quebec revenue agency would oversee the collection of federal income taxes in the province, and would be open to transferring more power to the province in the cultural sector.

https://www.theglobeandmail.com/politics/article-federal-conservatives-l...

 

 

gadar

Chretien, Romanow and McMurtry stand against the line up of Con premiers trotted out yesterday in support of Doug Dealer.

https://www.cbc.ca/news/politics/ford-notwithstanding-council-chretien-1...

voice of the damned

Former prime minister Jean Chrétien, former Saskatchewan premier Roy Romanow and former Ontario attorney general Roy McMurtry have issued a statement saying the clause wasn't meant to be used to circumvent proper process.

Yes, but one man's "proper process" is another man's "judicial tyranny". The fact remains, there is nothing in the NWC that denies premiers the right to use it in the way that Ford is using it. The complaints of Messrs. Chretien, Romanow, and McMurtry amount to little more than "We personally wish you wouldn't do this".

Michael Moriarity Michael Moriarity's picture

voice of the damned wrote:

Former prime minister Jean Chrétien, former Saskatchewan premier Roy Romanow and former Ontario attorney general Roy McMurtry have issued a statement saying the clause wasn't meant to be used to circumvent proper process.

Yes, but one man's "proper process" is another man's "judicial tyranny". The fact remains, there is nothing in the NWC that denies premiers the right to use it in the way that Ford is using it. The complaints of Messrs. Chretien, Romanow, and McMurtry amount to little more than "We personally wish you wouldn't do this".

Agreed. It was clear to me at the time these three cooked up their deal in the hotel kitchen that it could be used for any nefarious purpose, by any unscrupulous politician (of which Ford is a prime example). I was never particularly worried about judicial tyranny because I think that the judiciary will be the last part of our government to become totally corrupt.

voice of the damned

Climenhaga has a cynical take on the Three Amigos stance against Ford...

https://tinyurl.com/y8nvqblj

Good point about the futility of protesting violations against the spirit of the law, when the law as written(by the protestors themselves, no less) allows people to do just that.

 

 

Mr. Magoo Mr. Magoo's picture

Well, it would appear to be done deal, unless some court wants to overturn it or whatever.

And boy, nothing says "government ramming through its own agenda" quite like an "emergency" midnight weekend session.

Michael Moriarity Michael Moriarity's picture

Mr. Magoo wrote:

Well, it would appear to be done deal, unless some court wants to overturn it or whatever.

And boy, nothing says "government ramming through its own agenda" quite like an "emergency" midnight weekend session.

Yes, the only questions left are who gains and who loses popularity as a result of this anti-democratic action by Ford, and will anyone even remember it at election time in 2022.

Mr. Magoo Mr. Magoo's picture

Everyone will remember it.  But they'll remember it differently.

And in the short term, Ford will gain popularity among those he's already popular with, and lose popularity among those with whom he had none to begin with.

jerrym

Michael Moriarity wrote:

Yes, the only questions left are who gains and who loses popularity as a result of this anti-democratic action by Ford, and will anyone even remember it at election time in 2022.

 

This is not the only question. The broader question is whether this will encourage conservatives to pursue their belief that legislatures should be supreme, notwithstanding any rights of anyone under any circumstances. 

Michael Moriarity Michael Moriarity's picture

jerrym wrote:

Michael Moriarity wrote:

Yes, the only questions left are who gains and who loses popularity as a result of this anti-democratic action by Ford, and will anyone even remember it at election time in 2022.

 

This is not the only question. The broader question is whether this will encourage conservatives to pursue their belief that legislatures should be supreme, notwithstanding any rights of anyone under any circumstances. 

These questions aren't independent of each other. If Ford pays no political price for his action, or perhaps even gains from it, then other Con regimes will definitely try the same thing. On the other hand, if Ford clearly suffers vote losses because of using the nwc, others may be less likely to follow his example.

voice of the damned

jerrym wrote:

Michael Moriarity wrote:

Yes, the only questions left are who gains and who loses popularity as a result of this anti-democratic action by Ford, and will anyone even remember it at election time in 2022.

 

This is not the only question. The broader question is whether this will encourage conservatives to pursue their belief that legislatures should be supreme, notwithstanding any rights of anyone under any circumstances. 

I've got a theory about this(if that doesn't sound too pretentious). I think near-future governments(not all of them conservative) might be tempted to invoke 33, but it won't be on issues viewed as "universal", but on things seen as "special circumstances" to the jurisdiction in question.

So, for example, Kenney in Alberta, assuming he wins next year, won't bring in 33 to roll back same-sex marriage; that would be seen as too much of an outright affront(and his supporters aren't likely to abandon him for taking a harperite non-stance on that issue anyway). But he might use it if he wants to thwart a local university from giving an honorary degree to an anti-oil activist from Earth First, and the courts rule that's a Charter violation. It's not something that's gonna seem to the overwhelming majority like a major human-rights violation("Aren't we the ones paying for these awards anyway?"), and in any case, "This industry is the lifeblood of the province".

Just an example, and somewhat contrived, since Earth First is an organization with, shall we say, highly questionable legal standing to begin with. But those are the sorts of cases I could see governments invoking 33 over.

And on that note, does anyone know the details of the Catholic school case in Saskatchewan where 33 was laid down, with apparent support from the NDP, a few days prior to Ford's announcement? The details given in the press are somewhat sketchy.

Mr. Magoo Mr. Magoo's picture

One other thing that could be worth noting, is that now that the box has been opened, the NWC is going to be the elephant in the room every time the PM or a Premier wants to make a controversial choice.

The NWC used to seem more like a "nuclear option", but now, not so much.

Before the first Kamikaze pilot in WWII, I doubt the U.S. fleet was really expecting the enemy to fly their planes into ships and thereby kill themselves.  But after the first Kamikaze pilot, the U.S. had to always factor in the threat of an enemy that was ready to die.  It changed the rules some.

voice of the damned

The Conservatives are now saying that they won't invoke 33 if a higher-court ruling, due some time in the next 24 hours, I think, allows them to go ahead with the 25-seat Toronto election.

If the ruling goes the government's way, and they don't invoke 33, I wonder if there will still be the same precedent effect that everyone is afraid of. Maybe it'll just be forgotten that the Conservatives were planning to do that, and no one else will have the idea?

Of course, the Conservatives have already said they'd like to use Notwithstanding on other issues, so if they do that, my question could be moot.

 

Mr. Magoo Mr. Magoo's picture

Quote:
The Conservatives are now saying that they won't invoke 33 if a higher-court ruling, due some time in the next 24 hours, I think, allows them to go ahead with the 25-seat Toronto election.

That's like saying "I won't sue you for the money that I demand if you just give me the money I demand".

Quote:
I wonder if there will still be the same precedent effect that everyone is afraid of.

My guess would be "yes".

Ford pulled his concealed weapon.  We can't, now, pretend there was no concealed weapon, even if he didn't use it.

voice of the damned

^ But the thing is, there have been cases, some quite recent, of Notwithstanding being used, and garnering hardly any attention at all. For example, as I mentioned elsewhere, the Catholic School ruling in Saskatchewan a week or so ago. I didn't see any mention of that until Ford vs. Toronto became an issue, when commentators started mentioning it as another example of 33.

So, I'm not entirely convinced that just threatening to use it, in the absence of actual use, is going to have a long-term impact on the public imagination. Granted, maybe the melodramatic ambience in Ontario might impart a certain gravitas to Nowithstanding that it didn't have in other cases.