Doug Ford has wasted no time creating controversy now that he is the Ontario premier. In a move that was seen by some as a way to take revenge on his opponents on Toronto city council, Ford brought forward bill 5. This bill cut council from 47 members to 25 just months before the election. The bill was then challenged in the Ontario Superior Court and struck down by Justice Belobaba. Ford responded to the court’s decision by re-introducing the bill and invoking the notwithstanding clause. This has set off a national debate over Ford’s abuse of power and the acceptability of the use of the notwithstanding clause by the Premier. Ford is within his rights to invoke the notwithstanding clause (even if the law he is protecting is a terrible one). He, however, has an obligation to explain why he disagrees with the Court’s ruling that goes beyond pointing out that he is democratically elected and that judges are not.
On the face of it, Ford’s actions come across as an abuse of power by a Premier looking to take revenge on his political opponents. In this Maclean’s opinion piece Emmett Macfarlane makes a convincing case as to why the issue is more complicated. At the core of Macfarlane’s argument is that the Justice Belobaba’s decision extended section 2(b) of the Charter, protecting freedom of expression, beyond what is reasonable. It may be a stretch to argue, as the judge did, that freedom of expression grants one the right to run or vote in a particular electoral district. There are democratic rights to representation enshrined in the Charter but, perhaps unfortunately, such rights only to federal and municipal elections not to municipal ones. As a result, the courts could not have used democratic rights to strike down bill 5.
Even if one does not find Macfarlane’s argument completely convincing, and I am fairly convinced by it, it is hard to read his argument and see this as a clear-cut case. This is where last part of Macfarlane’s argument, and Ford’s use of the notwithstanding clause enters into the equation. The notwithstanding clause is in the constitution because most of the Premiers that Pierre Trudeau was negotiating with when the Charter was adopted were scared that the Charter would it make it possible for judges to limit legislator’s power without it being possible to hold such judges accountable. Because of this fear, the Premiers would only accept the Charter if they also got the notwithstanding clause. This gave the Premiers a way around court rulings that they felt were cases of judicial overreach or where rulings went against clear public interest. Like it or not (and there are plenty of reasons to do either), the right for legislators to push back against court decisions or parts of Charter they disagree with is an essential part of the Canadian constitution. Without it, few provinces would have agreed to the Charter.
Importantly the Premiers also put a check on themselves in the notwithstanding clause. A law with the notwithstanding clause has to be re-passed every 5 years for the clause to apply. This means that a government has to provide enough of a justification of the clause’s application in order to win an election. If they cannot, the application of the notwithstanding clause expires automatically.
The idea that a legislature can simply override court decisions it does not like would seem to make the Courts meaningless. The notwithstanding clause has not had that effect because of the way it changes public debate. Use of the notwithstanding clause imposes an additional burden on the politicians that use it. They must not only explain why the law they are passing is good, but also why it either is so important that it justifies overriding a Charter right or why the Courts were wrong to interpret the Charter in a way that struck down the law. The power of the Charter thus lies, in part, in the trust that the public places in judges and their decisions. The political backlash that governments face when they enact the notwithstanding clause makes it unlikely that they will do so unless they are confident that they can make an overwhelmingly strong case in favour of doing so. This is why the clause has been used so few times. Governments are afraid to be painted as going against Charter rights and the courts even if the laws they are defending were popular when they were originally proposed. This was most notable with respect to marriage equality rights in Canada. Such rights were controversial until the courts ruled in their favour. When some on the right suggested using the notwithstanding clause to defend an unequal definition marriage they faced a backlash not only from those that supported equal marriage but also from those who opposed overriding court decisions in such a cavalier way.
The problem in Ford’s use of the notwithstanding clause lies not in its use, but rather in the way he has justified using it. As Macfarlane’s piece notes, Ford could make a case that section 2(b) was applied inappropriately by the Justice Belobaba and that rights to freedom of expression should not be extended to include a right to run or vote in a particular electoral district. Unfortunately, these are not the arguments that Ford is making. Instead he has attacked Justice Belobaba as a McGuinty appointee (which is factually incorrect as the federal government appoints superior court judges) and asserted the right of elected leaders to overrule judges whenever they please in the name of “the people.” These arguments violate key liberal democratic norms that give judges an important place in ensuring that democracy does not turn into tyranny of the majority. If Ford believes that this is a case where a judge has acted inappropriately, Ford needs to explain why that is the case with reference to the way that Justice Belobaba interpreted the right to freedom of expression.
It is not surprising that Ford opted to launch an attack against a judge instead of engage in a discussion over how the right to freedom of expression should be interpreted. It is far easier to assert that one is elected and acting on behalf of “the people” than it is to make a complex argument about the rights that exist in the Charter and their limits. Arguing that Justice Belobaba’s ruling is inappropriate involves making two uncomfortable arguments. First, that democratic rights with regards to municipal elections are not protected in the Charter. Second, that freedom of expression does not extend to the right to run in a particular electoral district. Neither argument is likely to be popular as it suggests limits to rights that many voters consider important. The first argument, however, has the virtue of being true while the second is reasonably plausible. Ford has predictability opted for simpler but less defensible arguments. Doing so has threatened key democratic norms because the arguments Ford has used risk undermining public in the judiciary and its role interpreting and applying the constitution.
Ford’s use of the notwithstanding clause in of itself is not troubling. The clause ended up in the Charter because the 8 of 10 Premiers in 1982 did not trust the courts to have the unchecked authority to overrule elected legislators on Charter and would not accept a constitution that allowed them that power. To the extent that Justice Belobaba’s ruling is controversial, it is not unreasonable for Ford to make use of the rights that section 33 affords legislators. Ford’s justification of the use of section 33 is troubling. Using the notwithstanding clause should come with burden of not only showing that a law is supported by the public, but also with the burden of demonstrating that the law either is so important to the public interest that it should override Charter rights or that the Court has erred in its application of the Charter. By choosing to attack the judge and asserting that he was elected by “the people” Ford has failed to meet that burden. He deserves the public backlash that he has received.