Premier Ford told reporters on Monday that he will invoke Section 33 of the Charter of Rights and Freedoms — the controversial “notwithstanding” clause — to revive the bill to cut council when he recalls the legislature on Wednesday.
“We’re taking a stand,” he told a news conference, calling Justice Edward Belobaba’s decision to stop the council cuts “unacceptable” and adding he won’t be afraid to invoke the controversial clause again. “We have a mandate from the people,” Ford said, adding he has “no grudge at all” against Toronto and “the people will be the judge and jury.”
In his ruling, Justice Belobaba called the Better Local Government Act, also known as Bill 5, “unconstitutional.” Bill 5 dismantled Toronto’s 47 ward system in one fell swoop on August 14, 2018. Among other things, Bill 5 repealed City Council’s power to change its composition, and among other things, restricts the number of City Councillors to 25, plus the mayor.
Ontario's government will take immediate action to ensure the Better Local Government Act remains in effect as passed by the democratically elected legislature. pic.twitter.com/0eHkXnALWp
— Ontario News Now (@OntarioNewsNow) September 10, 2018
It should also be noted that this was done by Premier Ford without public consultation. Bill 5 stripped Toronto’s powers, while the remainder of Ontario’s municipalities maintains their power to govern pursuant to Section 222 of the Municipal Act, 2001.
“Passing a law that changes the city’s electoral districts in the middle of its election and undermines the overall fairness of the election is antithetical to the core principles of our democracy,” Belobaba says in his written decision.
The last resort – the Notwithstanding Clause
Section 33 of the Canadian Charter of Rights and Freedoms — commonly called the Notwithstanding Clause — is part of the Constitution of Canada. Americans might find the clause strange, but when Canada came up with its Constitutional Act of 1982 that affected Canada’s full political independence from the United Kingdom, Section 33 was added.
The Notwithstanding Clause has been invoked more than 15 times — mostly in Quebec. The basic language of the clause says this: “The Parliament of Canada, a provincial legislature or a territorial legislature may declare that one of its laws or part of a law applies temporarily (“notwithstanding”) countermanding sections of the Charter, thereby nullifying any judicial review by overriding the Charter protections for a limited period of time.”
That “period of time” is five years. The five year rule is deliberate because this means there will always be an election in the interim between using it for the first time and the end of the five year period.
The clause is a “safety valve,” of sorts. “It gives Ottawa or the provinces a mechanism to overrule charter rights that conflict with their legislative agenda,” said University of Waterloo associate professor of political science Emmett Macfarlane. “It was part of the compromise that allowed the Charter of Rights to exist,” he said.
Thomas S. Axworthy, who was principal secretary to then-prime minister Pierre Trudeau, said, “The clause was introduced as a compromise to appease several provinces that were opposed to the charter. They worried that the courts would have an undue policy influence,” he said, adding the alternative was a referendum on the charter as a whole.
Thanks to Prime Minister @JustinTrudeau for meeting with me tonight to talk about my concerns around the province's use of the notwithstanding clause. I appreciate his support for democratic principles, democratic institutions, and the importance of respecting cities. pic.twitter.com/1y5FDRsaBj
— John Tory (@TorontosMayor) September 10, 2018
Can Premier Ford invoke the clause?
Yes. Yes, he can. Ford plans on recalling Ontario’s legislature on Wednesday to reintroduce the Better Local Government Act and will invoke the notwithstanding clause. And because his party is the majority, there is no question that his move will pass.
Ford has been saying the only people fighting the ruling are special interest groups and left-wing councilors hoping for a “free ride” on the backs of taxpayers. “They’re just worried about a job,” he said.
This is all so strange coming out of Ford’s mouth because most councilors, private citizens and even the Toronto School Board are against reducing the number of wards, and quite a few local town meetings have lambasted Ford’s idea of only 25 councilors.
Mayor John Tory also hit back at Ford, saying Ford didn’t campaign on the plan to slash city council and held “not a minute” of public consultation as the bill was pushed through. “You can’t change the rules in the middle of the game. That’s not fair to anyone, and this is not a game,” he said.
“Democracy does not belong to a few of us, it belongs to all of us,” he said. “No law should ever fail to take that into account and all of us as lawmakers, regardless of where we’re carrying out those responsibilities, should always remember that.”
