Doug Ford Seizes Dictatorial Powers? Not.

 

A Ford, but perhaps not a Lincoln.

Some express alarm at Ontario Premier Doug Ford’s declared intent to invoke the “notwithstanding clause“ of the Canadian Constitution in order to override charter rights and allow legislation to limit campaign spending by third parties. I think it is a great idea. Even though I do not feel great about limiting campaign spending by third parties.

A bit of background here: the Canadian Constitution guarantees certain rights and freedoms. The courts can disallow legislation it feels is in violation of these. The legislature can respond by invoking this “notwithstanding clause” and overrule the courts. The legislation goes into effect, but must be renewed every five years.

Critics are objecting that Ford wants to override the Constitution. This is exactly the opposite of the truth: he is invoking the Constitution as written and as intended.

Traditionally, iin the Westminster system, Parliament is the “highest court in the land,” on the premise that the people are sovereign. Giving any court the ability to overrule the people’s representatives risks giving government itself to an oligarchy: those who appoint the Supreme Court justices, the legal profession and its gatekeepers, the professions and the professional classes. Some of the framers of the Canadian Constitution Act, notably Allan Blakeney, insisted on the notwithstanding clause to protect democracy.

It is important to know that a body of skilled lawyers have examined some legislation in detail, and say it is in violation of charter rights. This is helpful information for the public. If the government persists notwithstanding, they can decide to punish the government accordingly at the next election. But we must not surrender the people’s right to make that decision.

And time has proven the framers exactly right. Down in the US, it has come to be expected that Democrat-appointed judges and Republican-appointed judges will vote not according to the Constitution as written, but by party line. And they have become increasingly activist in disallowing legislation.

In Canada, it is worse. The Canadian Supreme Court is appealed to more easily and often. It has not only developed a habit of disallowing legislation but of demanding legislation be passed. And their rulings produce major social changes, without public accountability. They required Alberta to insert a reference to homosexual rights in their proposed provincial charter of rights. They struck down all limitations on abortion. They required the legalization of gay marriage; they redefined aboriginal rights, redefined who is an aboriginal, and on and on. They have developed a dangerous taste for power.

It matters little whether one agrees with this or that ruling, or them all. The power is arbitrary and capricious, and there is no reason to expect it will forever be used in the public interest.

Luckily, unlike the US, Canada has a constitutional remedy in the notwithstanding clause. The only problem has been, until now, a lack of courage among our elected politicians in invoking it. Quebec has used it regularly, but in the rest of Canada, only Saskatchewan, and only once. Doug Ford does us all a favour, and our grandchildren, if he further cements the precedent.