Yesterday, Doug Ford performed as predicted. He questioned a fundamental principle of Canadian democracy -- that we are a nation of laws, not men. Carissma Mathen writes in The Globe And Mail:
Ontario’s plan to invoke the notwithstanding clause – inserted into the Charter as part of final negotiations, and rarely used – was bound to be controversial. One might expect Section 33 to be used to respond to, or prevent, court decisions that imperil public safety (say, that strike down serious criminal offences) or wreak havoc to government’s finances. To use Section 33 then to maintain a preferred size of a city council is completely out of proportion – like using a drone strike to deal with a boisterous block party.
The problem is with how the Premier described his decision. He said the use of the notwithstanding clause was justified because of his political mandate. He said he was elected – and Justice Belobaba was merely appointed. The idea that governments might see their legislative goals struck down by a single judge was, he said, “scary.” Indeed, Premier Ford said he is prepared to use the notwithstanding clause again – leaving the clear impression that it will be his preferred response to any judicial setbacks.
There is so much wrong here one barely knows where to begin. First, while the Premier is correct that judges in Canada are not elected, he seems indifferent to the reasons why. We appoint judges and grant them security of tenure to preserve their impartiality and protect them from political reprisal. Indeed, it is the very nature of the judicial role that makes appointment rather than direct election necessary.
More fundamentally, the Premier seems to think his mandate entitles him to do whatever he pleases and any opposition is illegitimate. He suggests there is something wrong with judges overriding democratic decisions – even when those decisions are found to violate the Constitution. To be sure, many governments have expressed frustration with court decisions. But it is virtually unheard of for a Canadian political leader to appear to question the idea that we are a nation of laws.
And that is precisely the point. Ford has no idea of how the law works. Worse still, he has no respect for the law. Most importantly, he received no mandate to reduce the size of Toronto's Council. He never mentioned the plan during the election. And, as far as his claim that he is the people's premier, it's clear he can't do basic math:
Mr. Ford says he was elected by 2.3 million people. But Ontario has over 13 million residents, all of whom are protected by the Constitution and all of whom deserve political leaders who understand what that means.
There is room for a serious discussion of the notwithstanding clause. The Premier’s comments fall dramatically short of that. They indicate an intention to rule by fiat and to attack the safeguards built into our system to prevent such rule. Eventually, the Premier will discover that his power is not limitless. The notwithstanding clause itself only applies to a few of the Charter’s provisions. But in the interim, he risks enormous damage to the fragile political trust, between the legislative, executive and judicial branches, that makes our system possible.
With his brother Rob, Doug created chaos when he was on Toronto City Council. He'll do the same for Ontario. If his caucus supports his decision, they are as unfit to govern as he is.