Monday in Ontario, things went ballistic — and it’s something the electorate in every province should be thinking over.
A judge ruled that the Ontario government’s legislation to shrink the number of council seats in Toronto was critical flawed, and struck it down on constitutional grounds.
Premier Doug Ford’s move? He promised to suspend part of the Canadian constitution using powers that have not been used by any Ontario government.
“I believe the judge’s decision is deeply, deeply concerning,” Ford told a news conference on Monday afternoon. “He’s the judge, I’m the premier. He gets to use his tools. I’ll use every single tool to stand up for the people of Ontario.”
Ford has said he’d use the Constitution’s notwithstanding clause to wipe out the judge’s decision: the clause allows a government to override parts of the Constitution for as many as five years. It’s like using a flamethrower to kill a fly: not only has the clause not been used in Ontario, it’s certainly never been used anywhere in Canada for an issue as small as the makeup of a municipal council.
The thing is, Ford had other tools: the judge in the case didn’t have an issue with the legislation changing the council’s makeup, as much as the fact that the change was being done in the midst of an election.
The Ford government could have chosen to pass new legislation ordering the change to be in place for the next municipal election. Likewise, the Ontario government could (and did) seek an expedited appeal of the decision.
Instead, Ford wants to argue the Constitution shouldn’t apply to his government’s laws.
In the process, Ford said he wasn’t going to stop with just one use of the notwithstanding clause: he basically told reporters he “won’t be shy” about using it again if he felt the courts were getting in his way.
The idea that the notwithstanding clause could become a sort of political go-to to any time a provincial government loses in a court case on constitutional grounds is an alarming concept.
It would essentially mean a government elected by the narrowest of margins could choose to eliminate a citizen’s constitutional protections almost at will.
Ford is right that he and his agenda (the change to the Toronto council was not part of his platform during the election) were picked by the people of Ontario. But provincial governments already have extensive powers to enforce their agendas. Provinces can — and have — used even legislation like a time machine, essentially deeming it to have been passed years ago to foil successful legal challenges.
Using the hammer of the notwithstanding clause is a new low. Let’s hope no other provinces decide that suspending the constitution is a legitimate shortcut to imposing their political will.