Ontario Premier Doug Ford’s decision to shrink Toronto’s city council by roughly half — from 47 wards to the new target of 25 — has been understandably controversial. Toronto’s chronically inefficient and manifestly dysfunctional council could certainly use a reboot. Of course, reasonable people can ask why his government couldn’t have waited until after this election before implementing the changes, rather than disrupting a campaign already in progress. Or why it couldn’t have pursued a less disruptive option (delaying the current vote to provide an adjustment period being an attractive one). But it’s also clear that the less time Ford gives his opponents to invent legal and other manoeuvres to thwart his government’s agenda, the more able he is to actually execute policy without being frustrated by judges, like the one who this week somehow found a way to make the layout of Toronto’s municipal voting boundaries a Charter issue.
The judge in question, Edward P. Belobaba, also somehow saw fit to decide that the government’s motives were impure — born of “pique,” he suggested — despite, as Rex Murphy notes elsewhere in the National Post, the fact that the motive behind a government’s policy was not what was meant to be on trial. But it is also true that Ford is doing his cause no favour when he defends his policy by invoking past beefs with former rivals on city council, as he did in the legislature this week.
Still, the premier’s decision to invoke Section 33 of the Charter of Rights and Freedoms — the so-called notwithstanding clause — to enact his proposal, despite the judicial finding against it, is entirely correct. It is long past time for legislatures elected by and responsible to Canadians to reassert their proper place in our governance.
Ontario Premier Doug Ford speaks at the provincial legislature in Toronto on Sept. 13, 2018.
This is not a statement made lightly. The notwithstanding clause is rarely used (this is its first time in Ontario) and is rightly deemed a last-resort option. Its potential for abuse is also why declarations made through it come with a five-year time limit. But the notwithstanding power exists for a reason, and not just the one cited dismissively by critics of Mr. Ford this week who claim that its only purpose was as an awkward and regrettable compromise to allow former prime minister Pierre Trudeau to patriate our Constitution in 1982 over the objections of wary provincial leaders.
The higher purpose of the clause, as succinctly put by former Alberta cabinet minister and scholar Ted Morton elsewhere in the National Post, is to serve as “not a check on the Charter, but on judicial misinterpretation of the Charter.” Morton also rightly notes that Sec. 33 “represents a creative middle ground between parliamentary supremacy and judicial supremacy.”
It is, in other words, a made-in-Canada solution intended to protect our rights, including our right to be represented by people we have actually elected.
Not that you’d understand that listening to Ford’s hysterical …read more