Notwithstanding everyone, Ford steamrolls ahead

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But the long-term implications of Ontario Premier Doug Ford’s unilateral political heist cannot be ignored.

By Sheila Copps

First published in The Hill Times on September 17, 2018.

OTTAWA—Ontario Premier Doug Ford’s municipal hijack is likely to be just the beginning of a tumultuous four-year ride.

It matters little that he will throw Toronto municipal elections into a tailspin because the majority of the people will not even bother to vote.

The rest of a province will shrug and mostly smirk over the chaos that is being visited upon their “love to hate” capital city.

The notwithstanding clause is another tool King Ford will use to punish disloyal subjects, like the mayor who beat him and some councillors he would like to get rid of.

Prime Minister Justin Trudeau is wise to avoid weighing in on this one.

This is a mess solely of Ford’s making. Had the prime minister stepped in, the story would quickly become that of a power game between the two. That is exactly the kind of confrontation that Ford would love to provoke.

But the long-term implications of the premier’s unilateral political heist cannot be ignored. The haste with which the premier is moving to override the courts via the use of the notwithstanding clause is a risky ploy which will create other problems. Some see it as a blatant misuse of power.

Bill Davis, a highly-respected Ontario premier for more than 14 years, told TVO’S Steve Paikin the clause was never meant to permit dominance over the rule of law.

“The sole purpose of the notwithstanding clause was only for those exceptionally rare circumstances when a province wanted to bring in a specific benefit or program provision for a part of their population—people of a certain age, for example—that might have seemed discriminatory under the Charter.”

“The notwithstanding provision has, understandably, rarely been used, because of the primacy of the Charter of Rights and Freedoms for all Canadians. …That it might now be used regularly to assert the dominance of any government or elected politician over the rule of law or the legitimate jurisdiction of our courts of law was never anticipated or agreed to.”

Clearly, a decision to halve the number of councillors in only one city in the province does not align with the initial reasons for including the clause in Canada’s new Constitution back in 1982.

Ontario has never used the clause and initially opposed its inclusion. Ultimately, it bowed to the wishes of Saskatchewan and Alberta who proposed the amendment.

Notwithstanding the original intention of the drafters, the clause apparently can now be used by any premier in any circumstance.

No one included an interpretation guide to the Charter so Ford will likely get his way in the short term. In the long term his move creates two problems which he will live to regret.

The first was his attack on the judiciary. When the courts overturned the initial seat cuts, claiming the change was unconstitutional, Ford ignored the substance of the decision to attack the judge.

He wrongly claimed Edward Belobaba was appointed by Kathleen Wynne. In fact, Belobaba was named federally in 2005 with a stellar list of legal credentials.

He began his career as a law clerk to chief justice Bora Laskin at the Supreme Court of Canada in 1973. He subsequently served as associate professor and associate dean at Osgoode Hall Law School.

As a partner at Gowlings, for almost 20 years, he specialized in litigation and international business law and co-founded the Supreme Court Law Review, where he served as an editor.

Belobaba was not the kind of judge who received his appointment because of any connection to the political system. Ford’s personal attack will raise hackles in the legal system.

If his use of the notwithstanding clause is appealed, Ford can expect to have some pushback from the judiciary.

Likewise, mayors across the province are raising questions about where they stand and whether they are safe from the ire of the premier in another round of municipal council cuts.

At the recent Association of Municipalities of Ontario meeting in Ottawa last month, the buzz revolved around who would be hit next.

Ford’s behaviour reminds us of another politician south of the border who also listens to no one.

When Ford was running for office, his predecessor was attacked for comparing him to Donald Trump.

Last week, it was beginning to look like Wynne was right. Ford had few defenders of his use of the notwithstanding clause.

Even the father of Attorney-General Caroline Mulroney spoke out against the move, at the very moment she was defending it.

Notwithstanding everyone, Ford steamrolls ahead.

Sheila Copps is a former Jean Chrétien-era cabinet minister and a former deputy prime minister. Follow her on Twitter at @Sheila_Copps.