Nathalie Des Rosiers was President of the Law Commission of Canada, Dean of Uof Ottawa Faculty of Law ( Common Law) and (Civil Law), one of the co-authors of The Oxford Handbook of The Canadian Constitution. She is the MPP for Ottawa-Vanier and the Liberal Critic for Justice.
Premier Ford has indicated that he will use the Notwithstanding clause in response to the Superior Court’s decision on Bill 5 (Bill 5 is the statute enacted this summer that cuts Toronto’s City Council Members from 47 to 25). This is wrong and should not be done.
The Superior Court found that Bill 5 violated the freedom of expression of candidates and voters, particularly their right to effective representation. The judge further found that the government had not justified this infringement. He concluded that parts of Bill 5 are unconstitutional and the October 22nd election should take place the way it began last May, with 47 seats to fill.
Premier Ford probably did not expect this ruling. Certainly, the arguments put forth by the province to justify the measure were far from convincing. The province never tried to show why it is urgent to interfere in on-going elections, except that Premier Ford wants it. The Conservatives essentially railroaded this piece of legislation through the Legislative Assembly and want to do it again, this time with the use of the Notwithstanding clause.
Premier Ford has created this chaotic situation: he surprised everyone with Bill 5 (which was not part of the campaign) and pushed it through without debates. Just because he could. His new Caucus and new Ministers either too timid to stop him, or unsure how to do it.
There is no reason to use the Notwithstanding Clause: this is not a national emergency. There is no reason why Ford’s proposed reforms cannot be properly studied and discussed, may be even implemented in the next municipal election.
By using the notwithstanding clause, Ford is raising the spectrum of Toronto Council’s “notwithstanding elected” 25 members being unable to act for lack of legitimacy, with a dark cloud over their heads. Particularly, if Premier Ford loses his appeal. This will not help their efficiency. It could lead to the Council’s paralysis and inability to take tough decisions.
Premier Ford is also threatening the legitimacy of his own government. He is breaking from recent trends where governments prefer to work within Charter boundaries and respect the courts, rather than override them. This has been viewed as enhancing both our democracy and our policy-making. People can certainly disagree with courts’ decisions, but in general, governments have found that it was better to respect them. Their own legitimacy was protected, because eventually a ruling in their favour would augment the policy’s acceptability for the general public. A loss could always be blamed on the courts. Conservative Prime Minister Harper never used the Notwithstanding Clause. Premier Harris never it either.
By using the Notwithstanding clause in this case, where there is no national emergency, Premier Ford is setting himself to be asked to use it again and again, every time that his base is unhappy with a judicial result. This may not be what he wishes.
It is also interesting the Premier Ford is seeking to quash the federal government’s carbon tax in front of the courts. One assumes that if he wins, he will hope that the federal government respects the court’s ruling. Why does he not respect the court’s ruling in the present case?
It is time for the Conservative Caucus and Ford’s Ministers to stop this cavalier use of the Notwithstanding Clause. Ford’s actions are often erratic and producing chaos and uncertainty, but this time it could lead to a serious constitutional crisis.
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