Tucked in amongst the increasingly positive news recently regarding the continual reduction in COVID-19 cases and rising percentage of vaccinated Ontarians, was some disheartening evidence that not much has changed about Premier Doug Ford’s approach in the nearly 16 months since the news cycle moved to all pandemic, all the time.
Elected largely on the strength of the hold-your-nose vote (remember when people thought hydro rates were a huge problem?), Ford has governed from the beginning as if he believes he has the support of the masses and nothing he does is likely to come back to haunt him.
Back to our regular programming, the premier recently decided to use the notwithstanding clause in the Canadian Constitution to override a court decision with which he didn’t agree.
On June 14, the government used the override clause to pass Bill 307, which reintroduced amendments to the Election Finances Act that an Ontario Superior Court judge struck down as unconstitutional the previous week. In a move widely seen as designed to silence unions and others that oppose the Tory agenda, the judge found it was unconstitutional for the government to double the restricted pre-election spending period for third-party advertisements to 12 months before an election call.
In short, it seems Ford used what is deemed “the nuclear option” of political tactics for a measure that many view as having no purpose beyond improving his party’s re-election chances.
Is that a legitimate use of the clause? Not according to former Ontario premier Bill Davis, who weighed in on the subject in 2018 when Ford first raised the idea of using the clause, in that case to force through a plan to halve the size of Toronto City council mid-election (it wasn’t used at that time as an appeals court ultimately allowed Ford’s plan to proceed).
Davis, a longtime Conservative premier, was one of the framers of the compromise that resulted in the 1981 repatriation of the Constitution, which included the notwithstanding clause.
“The sole purpose of the notwithstanding clause was only for those exceptionally rare circumstances when a province wanted to bring in a specific benefit or program provision for a part of their population — people of a certain age, for example — that might have seemed discriminatory under the Charter,” said Davis in an interview with TVO at the time.
Doesn’t seem to open the doors to overruling court decisions to help you win elections, but who are we to say?
Combined with the 2019 passage of the Ontario Crown Liability and Proceedings Act, which makes it nearly impossible to successfully sue the Ontario government, the notwithstanding clause usage indicates a serious lack of respect for the rule of law from a government bound to uphold it.
Under our parliamentary system there are few checks or balances on a majority government. The courts are one.
Or at least they used to be.
