The Ontario Conservative government is crossing a line that should never be crossed, resorting to the so-called “Notwithstanding Clause” to press ahead with its “Make Toronto Small Again Act” (as I call it), to drastically scale down Toronto’s city council following a court ruling striking the Act down.
Former Canadian Prime Minister Pierre Trudeau said that the clause was his greatest regret in the enactment of the Canadian Charter of Rights and Freedoms. It was a deep compromise to get the constitutional package passed. It is a bomb not lightly to be thrown.
Parliament and provincial legislatures can use s. 33 of the Charter to exempt legislation from some of its protections. A s. 33 declaration lapses after five years (or less if stipulated). After that, it has to be re-enacted all over again. Because elections must be held at least every five years, this means that Charter exemptions die unless at least two successive governments legislate them.
Section 3 of the Charter, guaranteeing the right to vote and to stand for office, has been interpreted to include a meaningful right to democratic participation, including things like the fair sizing of ridings. It cannot be side-stepped with s. 33. However, it does not apply to municipal elections.
Municipal governments have no explicit place in Canada’s Constitution, except that they are under provincial jurisdiction. There is no explicit requirement at all for civic governments, or that municipal leaders be chosen by election. In theory, cities could be run directly from provincial capitals. Fortunately, constitutional law goes beyond the literal words on the page and the outright dismantling of municipal democracy would face a rough ride in the courts.
When the City of Toronto decided to challenge the Ford government’s legislation, enacted in the midst of an election cycle, it needed more than a little creativity to frame a legal foundation for its case. Absent direct Charter protection of municipal democracy, other, more indirect tools had to be found.
I think it is safe to say that most of the legal community was surprised when the Ontario Superior Court of Justice struck down the law on the basis that it violated the freedom of expression of voters and candidates [Charter section 2(b)] and equality rights [section 15]. This “back-door” approach is perhaps the first major case constitutionalizing municipal elections, as such. In my view, it is a very important step forward if it can survive appeal. Unfortunately, and I deeply hate to say so, it faces a very uncertain future before the Ontario Court of Appeal. I will be delighted if the course of events proves me wrong.
A “normal” government in this country would content itself to launch an appeal and bide its time. A “normal” government would care that normalizing the Notwithstanding Clause is dangerous to Canadian rights and democracy. Section 33 is not there to enable premiers to pursue their petty hobby-horses. If it is to be used at all (a highly dubious notion) it should be reserved for very serious business.
If Ford is ready to drop the s. 33 bomb over the number of Toronto City councillors (not to belittle that issue), what should we expect when a question of fundamental human rights is at stake?
There are two theoretical “escape hatches” to stop Ford’s act of constitutional vandalism. Neither is likely to happen in the current climate. Under our Constitution, the monarch (represented by the province’s Lieutenant Governor) can reserve approval of a bill and withhold its formal seal of approval. The other is the federal cabinet’s power to disallow it. There is some legal opinion that both of these powers have effectively lapsed through long disuse.
The mechanism of intervention by the Crown to kill a statute is a relic of a time when the relationship between a semi-independent Canada and the United Kingdom, and the role of the Crown in the mix, was very different from today. It has been invoked extremely rarely in Canadian history. The last time was more than a half-century ago.
Federal disallowance is a relic of the more centralized federation originally launched in 1867 than the more dynamic balance of federal and provincial powers that has since evolved. It was last used way back in 1943, to kill a statute of the far-right Eberhart government of Alberta that declared members of the Hutterite religions community as “enemy aliens.” Even a suggestion that Ottawa might disallow a provincial statute would spark a deep political and constitutional crisis, and is another “bomb” in our legal frameworks that (like the Notwithstanding Clause) would normally be contemplated only in the most extreme circumstances, if at all.
This is not to trivialize Ford’s attack on civic democracy in Toronto. On the contrary. But the real answers to the Ford regime lie in politics, not from counting on interventions from above. The most important lesson is that we should never take democracy for granted. It is the fruit of struggle and vigilance.
by Jim Quail
The content of this article is intended to provide a general guide to the subject matter and does not comprise legal advice.