Provincial-Municipal Acrimony: Ford Slashes Toronto City Council
Once again, against the better judgement of many Ontarians, Doug Ford has our attention. Recently, the unlikely Premier has declared that his Progressive Conservative government will be invoking the notwithstanding clause in section 33 of the Canadian Charter of Rights and Freedoms to proceed with his decision to reduce the number of Toronto city councillors— but not without controversy.
Ontario’s first use of this contentious constitutional provision comes after a decision from the provincial Superior Court of Justice to strike down Bill 5 much to the chagrin of Ford’s conservatives. Besides redrawing the electoral districts of the city of Toronto in the midst of a municipal election, Bill 5, if enacted, will cut down the number of wards and councillors on city council from 47 to 25— a dramatic decrease!
New Democratic Party leader, Andrea Horwath, and Toronto mayoral candidate, Jennifer Keesmaat, have both accused Ford of a vengeful misuse of political authority, as he dusts off the old political grudges on his shelf.
Otherwise known as the Better Local Government Act, Bill 5 was struck down by the Ontario Superior Court on the basis that the process of enacting it is not constitutionally permissible under the circumstances. According to Justice Edward Belobaba, there exists “at least two constitutional deficiencies that cannot be justified in a free and democratic society. The first relates to the timing of the law and its impact on candidates, the second to its content and its impact on voters.”
Section 33, also known as the override clause, is a much-debated section of the Charter of Rights and Freedoms which allows the provinces to override fundamental rights. Needless to say, its use is not to be taken lightly. As Glendon’s own constitutional law expert, Dr. Radha Persaud, states, “section 33 is [intended to be used in] extraordinary circumstances for good governance under the rule of law.” The catch? Parties employing the notwithstanding clause must first admit to overriding rights, draft a version of the bill in question which specifically addresses the use of the override, and finally, must revisit the use of the override in five years for renewal.
Professor Persaud explains that the inclusion of the override clause was controversial from the start, calling it the “biggest concession that former prime minister Pierre Trudeau made in getting Canadians an entrenched Charter of Rights” in 1982. Indeed, armed with the Supreme Court's majority opinion on convention in the Patriation Reference case of 1981, the provinces wouldn’t budge without it. The clause served to help balance the powers of the overarching federal government with the powers of the individual provinces.
To the satisfaction of many, the override clause has generally been received as a resounding success since its implementation. Any flattery directed at Pierre Trudeau, however, might be premature in the wake of Ford’s actions—actions which the current prime minister, Justin Trudeau (Pierre Trudeau’s own son), has called a “disappointing” use of the reputed notwithstanding clause. Even more disappointing was the message that Ford delivered to the people of Ontario that his government is “prepared to use section 33 again in the future,” leading Ontarians, of course, to question whether the use of this constitutional instrument is being treated with the political and constitutional weight it warrants.
Professor Persaud lends some scholarly insight on the issue, revealing that the controversy of Doug Ford’s actions may simply boil down to interpretation:
“If you believe that the invocation of section 33 in this particular set of circumstances is a misuse or abuse of constitutional power, then there is cause for concern about the use of this constitutional instrument to override judicial decisions. If, however, you believe that since section 33 is an option for the governors [Premiers] of the state to use as they deem necessary and appropriate for their legislative agendas, then it may not be considered an abuse or misuse of power. The significant question in this is whether the use of section 33 detracts from or enhances the ideals of our parliamentary and federal hybrid constitutional system.”
Indeed, Justice Belobaba was clear in his judgment that the use of section 33 is well within the powers of the Ford government, however unconstitutional under the current circumstances.
Pro Tem would like to thank Dr. Radha Persaud for his contributions to this article and oversight throughout its creation.