Toronto Injury Lawyer Blog
This instalment of the Toronto Injury Lawyer Blog is not your typical personal injury piece. Reason being, this has not been your typical week in the world of the law and politics in Ontario. As detailed below, this has been a historic week.
Earlier today, Doug Ford and his Conservative majority government enacted section 33 of the Charter, commonly referred to as the Notwithstanding Clause in order to uphold The Better Local Government Act.
The Better Local Government Act was passed by Premier Ford’s majority government to reduce the number of seats in the ongoing Toronto Municipal election from 47 seats, down to 25.
The Honourable Justice Belobaba ruled that Premier Ford’s Better Local Government Act was unconstitutional as it violated the Canadian Charter of Rights and Freedoms.
Premier Ford recalled legislature today and passed a resolution declaring that The Better Local Government Act would apply “notwithstanding” the Charter.
Essentially, Premier Ford used his supreme constitutional power to overrule the decision of a Judge to pass the legislation which the Judge had deemed to be unconstitutional.
Constitutional lawyers across Canada and legal academics rejoice. They haven’t seen so much CORAF action since the 1980’s.
As a personal injury lawyer, I rarely use or have the need to apply Charter arguments to any of my injury or disability cases. In fact, most lawyers who practice in civil litigation rarely use or apply Charter arguments. We mostly see Charter arguments applied in criminal, immigration, constitutional and human rights cases.
So, when Premier Ford enacted the notwithstanding clause, the legal hive erupted! This was the FIRST TIME that the notwithstanding clause was used in Ontario history! It’s been used rarely across Canada. Most frequently we’ve seen it used in Quebec over French language and cultural issues. We’ve also seen it applied to large labour strifes like we saw in Saskatchewan. Never has it been applied in Ontario, and never has it been applied on an issue like the apportionment of seats for the upcoming Toronto Municipal election.
Can Premier Ford use the Notwithstanding Clause to achieve his means and get what he wants? YES. He’s allowed so says the Charter.
But just because you’re allowed by the law to do something, does it make it the right thing to do? NO.
Here are a few things which concern me:
- What’s the rush? The Better Local Government Act was passed while the Toronto Municipal Election was in full swing. I understand the argument of shrinking down City counsel, but there’s a time and way of doing so. Pushing the Act through in mid election isn’t responsible, or appropriate (so found the Honourable Justice Belobaba). If you want to shrink Municipal Government, go ahead. Just don’t do it mid election. The Conservatives hold a majority government. Their majority power ought to be used responsibly and not in haste when there is no impending urgency like a war, strike, natural disaster.
- The Notwithstanding Clause delegitimizes the Court and our independent judiciary. This issue is not being talked about enough. I have appeared before the Honourable Justice Belobaba. He’s a smart Judge who know the law inside and out, and cares about the judicial system. In fact, the majority of Judges in Ontario are smart and care about upholding the law. Most Judges can make more money in private practice than they do sitting on the bench. There’s a reason that they are where they are and it’s not a fluke. When a government uses the Notwithstanding Clause, it sends a message to the public that our government does not respect our Court system or that our Court system is not good enough. It also tells the public that the government runs above the law. Look throughout history at the rise of dictators and tyrants. You can also look to rulers in Third World Countries. One of the first things which dictators and tyrants seek to do is to undermine and destabilize the Courts. This is not to compare Premier Ford to a dictator or a tyrant. But the use of the Notwithstanding Clause sends a pompous message to the electorate which serves the purpose of delegitimizing our independent judiciary which is wrong.
- For the People? Premier Ford speaks at press conferences behind a podium with a large blue sign that boldly says “For the People“. I love that. A government should be exactly that: “For the People“. But Premier Ford captured his majority government by winning 40% of the popular vote. That means that 60% of voters did NOT vote for him or his government. That 60% does not agree with his politics, and certainly does not agree with his use of the Notwithstanding Clause in this situation. T0 take that figure one step further, Premier Ford won the election with 2,322,422 votes. There are approximately 13,600,000 people who live in Ontario. To say that Premier Ford is using the Notwithstanding Clause with the support of the majority of 13,600,000 Ontarians is incorrect.
- Where’s the Transparency? People respect governments which are upfront and honest about their intentions and policies. During the campaign, Premier Ford promised to bring back Buck-A-Beer. He did. Premier Ford promised to cancel Cap and Trade. He did. We respect him for that honesty. But what Premier Ford didn’t do was make any mention of along the campaign trail to reduce the size of Toronto’s Municipal Government. This feels to most neutral politicos like a bait n’ switch over an issue which means little to the province, except for those who live in Toronto. It feels like a personal vendetta from Premier Ford’s days sitting in Toronto counsel as a way to get back at all those who slighted him and his departed brother back in the day. In the words of Spiderman, with great power comes great responsibility. The use of the Notwithstanding Clause in this manner is not a proper use of that great power and is not a sign of responsible governance.
- The Threat to Use the Notwithstanding Clause Again, and Again, and Again: At his press conference, Premier Ford announced that he would not hesitate to use the Notwithstanding Clause over and over again should an appointed Judge get in the way of his elected majority government’s policies. That means that if Premier Ford’s policies are found to be unconstitutional again by a Judge, he will not hesitate to override the Judge’s ruling to get his way. This should scare Ontario residents! This sort of cavalier attitude towards holding power, and disrespect for our judicial system should not be tolerated. Premier Ford has every right to challenge a Judge’s ruling should he not like it. Heck, he has an entire army of lawyers at his disposal through the Attorney General’s office. Judges aren’t perfect. They get things wrong from time to time. That’s what appeal courts are for.
