Notwithstanding

Allan Blakeney.

Doug Ford is planning to use the Canadian Constitution's “notwithstanding clause” to override a court that seeks to block his plan to reduce the size of Toronto City Council.

I see a bunch of people online protesting this “unconstitutional” action, which violates “the Charter of Rights and Freedoms.”

Whether or not you agree with Ford's action, it is simply wrong to call it “unconstitutional.” He is invoking a clause of the constitution. The constitution is not unconstitutional, by definition.

Is he violating the Charter of Rights and Freedoms? Yes, in the opinion of a judge. But isn't there a real-life possibility the judge is wrong? I hear everyone in the know was surprised by the ruling; they did not think there was a legitimate charter case here. After all, how is reducing the size of a city council a violation of anyone's free speech? Can anyone really justify that claim?

Beware. If rights can come to mean whatever a judge says they mean, then they mean nothing. They are gone.

And if the courts cannot be counted on to protect our rights, the legislature must step in.

Many argue that the issue is not important enough to justify invoking the notwithstanding clause. I agree that the issue is not important. But I think it is important for some government to invoke the notwithstanding clause for its own sake. Probably best to do it on an issue not itself too big and controversial, not too fraught with partisan concerns, in order to normalize the practice without causing any real crisis. If the judiciary has gotten out of control in general, and has been appropriating to itself the duties of the legislature, this is exactly what is needed: a clear shot across the bow. Without anyone getting seriously hurt.

And I think that is exactly what has been happening, in dramatic fashion. The Canadian courts have been out of control. An obvious recent example is a court's disallowance of the Kinder Morgan/Transmountain pipeline, at catastrophic taxpayer expense. The judges need to be reined in, and the job of legislating returned to the legislatures. There has been a pileup of terrible decisions and precedents now, that without resort to the notwithstanding clause, will haunt us forever. Because judges cannot bear not to be in control, and always want to make historic rulings that go into the law books and change everything.

That's the point of the “notwithstanding clause.” To prevent this. That is exactly why Allan Blakeney fought for its inclusion in the Constitution.

Now's the time, and well past the time. Ford does us all a great service.