There is just something about democracy the duly elected premier of Ontario doesn’t appear to understand.
There are some things Doug Ford absolutely gets right, though his apparently growing legion of detractors loathes to admit it. The government of Ontario indeed has authority over municipalities and municipal elections. And thanks to that authoritarian artefact of our constitution known as the NotwithStanding Clause, the province can indeed override the Charter of Rights and Freedoms essentially on a whim.
Ford is right about all of that in the broad strokes. But to borrow from that famous defender of chaos mathematics, Ford was preoccupied with whether or not he could invoke section 33 of the Charter he did not stop to think about if he should.
For those in Ontario who have been trapped in a cave without a cell phone or radio, Ford is invoking the Notwithstanding Clause because on Monday a Superior Cout of Justice judge ruled the Better Local Government Act – legislation that will slash the size of Toronto’s city council and shut down the elections of regional chairs in several regions, including Niagara – was unconstitutional.
Now, reasonable people can debate the judge’s reasoning that the act is unconstitutional because it violated the freedom of speech of those already running for Toronto council seats when Ford unexpectedly pushed the legislation through.
(A little fact checking on this point is important. Ford and his defenders will say he ran on making government more efficient. The reality is, however, he never mentioned his plans on Toronto city council, nor shutting down regional chair races, at all during the provincial election campaign. That is why the Better Local Government Act was such a shock to many Ontarians, and formed part of the judge’s ruling.)
However, reasonable people would challenge the judge’s ruling. Ford could appeal the ruling and make a case that his legislation is not unconstitutional. That might take time, however, and Ford appears to be in an inexplicable rush to transform Toronto city council to suit his liking.
So he turns to the Notwithstanding Clause.
The clause itself is an affront to democratic principles. It gives the government the power to override the very rights that make a democracy work. And while it has only been used 15 times in Canadian history, and always with tremendous angst and debate, it does give a majority government far too much power.
But a debate about the merits of the clause is less the issue here than Ford’s fundamental, Tea Party-esque reasoning. That reasoning is why this column opened by saying there is something Ford doesn’t understand about democracies.
“I’ m elected,” Ford said about the judge. “He’s appointed.”
He went on to say how distressed he is about the appointed courts attempting to undermine the elected government and he will use the clause as often as necessary to enact his agenda. This is the line of rhetoric that has become very popular among some Republicans in the United States, particularly when arguing issues like abortion, gay marriage or putting Christian mythology into science classes. Courts that rule against government legislation are “legislating from the bench,” which, from this point of view, is anti-democratic.
Essentially, the argument used by Ford says that an elected government can do whatever it wants because it is elected. The role of the courts is not to dispute, disagree or rule a piece of legislation is illegal or unconstitutional, but rather judges have to “strictly enforce the law.” In other words, the courts are not to interpret legislation, but only rule if someone has violated it or not. At the foundation of this argument is the idea that being elected grants the government a kind of supreme power that can only be questioned or overturned at the ballot box.
Essentially, the root of Ford’s argument is no different than the one once used by disgraced U.S. President Richard Nixon who, when asked if a president could break the law said: “If the president does it, that means it is not illegal.”
Such reasoning is profoundly authoritarian and, of course, doesn’t actually reflect the role of the courts. The courts act as an effective check against government power. As Andrew Coyne put it in his recent column in the National Post on this issue, it is not that the courts are above the government, they are other than the government. They are the second set of eyes that, the sober second thought, that ensures governments do not violate the rights of citizens.
Indeed, because our particular iteration of democracy merges the executive and legislation branches of government into parliament, the courts are often the only check and balance on a majority government. The job of the courts has never been to simply enforce whatever laws the government enacts. It also must, for a democracy to be healthy, interpret those laws and sometimes that requires a government to go back to the drawing board.
This is a most necessary process that ensures a government cannot simply pass laws on a whim – one Canadians would do well to protect by finding the political will to cast the Notwithstanding clause into the dustbin of history.