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.
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".
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.
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.
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.
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.
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.
OK.
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?
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.
https://www.cbc.ca/news/canada/toronto/doug-ford-notwithstanding-clause-...
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.
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.
https://nationalpost.com/pmn/news-pmn/the-sparse-use-of-canadas-notwiths...
David Climenhaga suggests Scheer has several reasons for not coming out against Ford on the notwithstanding clause.
http://rabble.ca/blogs/bloggers/alberta-diary/2018/09/why-wont-andrew-sc...
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...
^^ 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.
^ 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.
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?
https://www.theglobeandmail.com/politics/article-federal-conservatives-l...
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...
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.
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.
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.
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.
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.
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.
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.
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.
That's like saying "I won't sue you for the money that I demand if you just give me the money I demand".
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.
^ 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.
What do you expect from a Con. Insults instead of rational thought.
http://rabble.ca/news/2018/09/ford-fights-downtown-elites-and-substitute...
One might similarly think that threating to build a wall, and make Mexico pay for it, would fade from memory when no such wall can be seen.
Sadly, this is probably the best of both worlds for Ford. He didn't actually have to fire his gun, but all of his supporters saw him draw it. And all the other cowboys now know he'll do it again.