The Notwithstanding Clause: A Gift from Doug Ford to Jason Kenney

Sometimes silence speaks louder than words.

Last week Doug Ford went straight to the nuclear option when a judge told him no Doug, you can’t downsize Toronto city council in the middle of a municipal election just because you feel like it.  Mr Ford says he’s going to invoke the “notwithstanding clause”, Section 33 of the Charter of Rights and Freedoms, to get his way.

When a conservative politician makes a grand “I’ll show you” gesture, especially when it is accompanied by overblown rhetoric about activist judges interfering with the wise decisions of elected representatives, it is customary for all conservative politicians to pile on.

But one conservative politician, Jason Kenney, has remained uncharacteristically silent.  (Mr Kenney hits the airwaves to condemn things his own government did when it was in power, so it’s strange he’s not applauding Doug Ford for putting the judiciary in its place).

premiere-melee-politique-balado-jason-kenney-doug-ford

Mr Kenney and Mr Ford

Mr Kenney could have said many things, including the comments he made 20 years ago as a Reform MP when he said the Klein government should “have the courage to invoke Section 33 [and begin] the recovery of democracy” to override a Supreme Court of Canada decision that said an employee could not be fired on the basis of his sexual orientation because it was a protected ground under the legislation.

Instead he declined to be interviewed.

It’s unlikely Mr Kenney is no longer worried about “the recovery of democracy”.

It’s more likely Mr Kenney is beside himself with joy.  Mr Ford’s decision to invoke Section 33 will give Mr Kenney a preview of what to expect if he tries to do the same thing in Alberta (assuming he’s elected in 2019).  If Mr Ford pulls it off without grave political damage Mr Kenney will deploy Section 33 as part of his legislative arsenal to transform Alberta into the beacon of the conservative movement.

It’s an incredible gift for the man who sees himself as the leader of the Canadian conservative movement.

Section 33

Section 33 has been described as “reintroducing a measure of Supremacy of Parliament” by allowing Parliament and the legislatures to “have the last word on a number of issues”.

These issues concern fundamental freedoms including freedom of thought, assembly, association, and the press (section 2), legal rights including the right not to be arbitrarily detained and arrested (sections 7 to 14) and equality rights including the right to equal protection and benefit of the law without discrimination on the basis of race, ethnic origin, religion, sex, etc (section 15).

Critics of the notwithstanding clause say it renders the Charter useless.  Others disagree saying Section 33 is limited in scope (it looks pretty broad to me) and time, it must be renewed after five years or it expires.  They also say it’s rarely used and legislative bodies generally let the Supreme Court of Canada have the last word.

This may have been true in the past, but it’s not true today when the conservative movement is being led by the likes of Doug Ford and Jason Kenney.

Mr Kenney’s agenda

Mr Kenney has been crystal clear about his economic agenda.  He will bring back the “Alberta Advantage” by eliminating the carbon tax, bringing back the 10% flat tax, and reducing the deficit by imposing austerity measures.

Yes, it’s going to hurt but it can be accomplished without impacting our fundamental rights and freedoms.

Mr Kenney has been less transparent about his social agenda, preferring to boycott potentially contentious debates rather than risk a bozo eruption.

However, the reaction of UCP to NDP legislation that protects LBGTQ2S+ rights and the rights of organized labour signals a desire to reverse the progress the NDP has made on these fronts.

This is where the “notwithstanding clause” becomes important.  The UCP government could pass legislation revoking such protections and invoke the notwithstanding clause to pre-empt any attempt to challenge such legislation for violating the Charter.

And there is nothing anyone could do about it.

Will he or won’t he?  

Mr Kenney refused to be interviewed about Doug Ford’s decision to invoke Section 33, instead the UCP issued a statement saying Section 33 “is a tool available to every provincial government to use if and when it is appropriate.”

Mr Kenney won’t comment because he’s waiting to see if Mr Ford can pull this off.

If Mr Ford is able to ramrod legislation through the House using Section 33, Mr Kenney will use it at the “appropriate” time to reverse socially progressive legislation and demonstrate to Alberta and Canada that he’s got what it takes to be the true leader of the conservative movement.

If Mr Ford is hammered by political blowback, Mr Kenney won’t have to backtrack from having praised Mr Ford for trying this stunt in the first place and can hold the idea in reserve for the future.

Mr Kenney knows there’s a time to be silent and a time to speak up.

Albertans know this too.

If Albertans want to ensure their Charter rights won’t get trampled by a UCP government in 2019 we need to speak up today and most importantly on Election Day.

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21 Responses to The Notwithstanding Clause: A Gift from Doug Ford to Jason Kenney

  1. Pingback: Jason Kenney’s Passage to India is nothing more than a nice fall holiday with two friends - Alberta Politics

  2. Carl HUNT says:

    If Doug Ford’s ratio of one councillor for 100,000 Toronto voters was applied to my home town we wouldn’t qualify for a Mayor. I think the reduced council size has a lot to do with saving money but not for taxpayers. By reducing the number of elected representatives, democracy will move further towards control by multinational corporations and the 1%, that can afford large political donations and promote a lot of expensive election advertising. The corporate lobby and mega rich will only have to support and get elected, a dozen or so of their favourite Toronto politicians to control city projects. Decisions will be made quickly but priorities won’t be for public benefit or tax savings.

    • This is a very interesting point, Carl, especially given the fact that Ford said the change from 47 wards to 25 would save $25 million, however his lawyers told the court they were NOT relying on the cost savings argument to support their case, likely because they had no hard evidence to support it.
      The Judge examined the arguments presented by the Province and said (i) there is no evidence (other than anecdotal evidence) that a 47-seat City Council was “dysfunctional” or that a 25-ward structure City Council would provide more effective representation (in fact Toronto did a boundary review study which found the exact opposition. It considered reducing Council to 25 wards and rejected the idea because councilors were struggling to provide effective representation to wards averaging 61,000 people, let alone 110,000), and (2) even if the Province had evidence to support its arguments, there was no evidence of any urgency that required Bill 5 to take effect in the middle of the election.
      So we’re back to where you started Carl, why would Ford do this?
      Maclean’s magazine carried the Judge’s decision. Here’s the link: https://www.macleans.ca/opinion/doug-fords-law-to-slash-toronto-council-is-unfair-but-it-should-not-be-struck-down/

  3. Dwayne says:

    Susan: I must thank you for another great blog. With Doug Ford, he seems to be acting like a petulant child, when he cannot have his way. What I see here is him being on a revenge mission for Toronto, and nothing more than that. He and his (late) brother Rob Ford were not the greatest of council members for Toronto. Now, he wants to seek revenge for his critics. The courts are there for a reason. The decision they made striking down Doug Ford’s council cuts, during a pending municipal election, should have been respected. Doug Ford did not do that. So, we see Section 33 (the notwithstanding clause) being used by Doug Ford. Why is it only Toronto that is facing these council cuts? I read that Ottawa may be next, but with the backlash from the Toronto council cuts, I cannot fathom that happening. How is this saving money for Ontario, when this is a municipal issue, paid for with property taxes? I also did not recall Doug Ford mention city council cuts in his election platform. The court costs fighting this were very pricey. Again, no saving of money there. Furthermore, is it just a coincidence that the provincial election results in Toronto did not favour the PCs, and then the council cuts were brought forth by Doug Ford? So, why stop at Toronto? If Doug Ford stated he wants to reduce the size of the government in Ontario, why not go further and slash the number of MLAs in the province? When we see former Conservative politicians, like Brian Mulroney and Bill Davis speak out against what Doug Ford has just done, there is a problem. Bill Davis, who also played a role in getting Section 33 (the notwithstanding clause) created, did not intend it to be used for situations like what Doug Ford has done. Brian Mulroney stated that he was hesitant to use it. It will be interesting to see what else he has to say to his daughter, Caroline, an MP in Doug Ford’s PC government. If I recall, Ralph Klein also thought he could use Section 33 (the notwithstanding clause), when he was premier of Alberta. He was thinking that he could quash a lawsuit against the government of Alberta, from victims of forced eugenics, who wanted compensation for their ordeal. The public was against him on that. He had to back down. Also, Ralph Klein and his PC government had a bully mentality. Any municipal leader that did not agree with him was harshly punished. The municipality where that leader was representing, was hit hard financially, with more cuts. Others, like academics, or people in other high profile fields that spoke about a hot button issue, like climate change, were punished. Dr. David Swann, now a Liberal MLA, comes to mind. With Jason Kenney, people must be careful. He will go down the same bad road that Ralph Klein did, with bringing back the flat tax, trying to pursue private health care and imposing austerity measures. That is not what Alberta needs, as we are still paying for those major mistakes and the very large scandals, that the Alberta PCs did for decades. If he is given the chance, Jason Kenney will also use Section 33 (the notwithstanding clause) for advancing his bad agendas. That is not democracy. People need to do their research before they vote. With Doug Ford, hopefully people have learned their lesson and will think again about voting for the PCs in Ontario. They had to find out the hard way with Mike Harris.

    • Dwayne, you make an number of excellent points, particularly with respect to when it would be appropriate to use the notwithstanding clause. Jean Chretien (Liberal PM), Roy Romanow (NDP premier Sask) and Roy McMurtry (Attornery General and PC MPP Ontario) helped negotiate the clause. They agree with Bill Davis (PC Premier Ont) and 80 law professors from all over the country who say the notwithstanding clause was supposed to be used as a last resort and only in the most exceptional circumstances not as a first resort in mundane circumstances.
      Ford is going to double down I’m sure, but it struck me as very cowardly of him to hold an emergency session on this issue at midnight last night…he probably thought he’d avoid the protestors by scheduling the session so late, but the protesters showed up in droves to express their disapproval. I hope Albertans are paying attention. Ford is a preview of what’s in store if Kenney wins in 2019.
      Here’s the link to the letter signed by 80 law profs: https://drive.google.com/file/d/10uYmvekSX2lkKP_P2n1UKb062B0qaYA6/view

  4. jerrymacgp says:

    The principle function of a constitutionally-entrenched bill of rights is to protect unpopular or vulnerable minorities from the tyranny of the majority. That judges in Canada are appointed, not elected, is not a bug but a feature, as it contributes to the independence and impartiality of the judiciary. As for Section 33, its original purpose, as I understand it, was to ensure the supremacy of the legislature when it comes to “supply”, i.e. funding and taxation, and ensuring courts cannot impose unfunded liabilities on a government without legislative assent. What DoFo is doing is unhealthy for our democracy and deserves the most vociferous of condemnations.

    • Dwayne says:

      jerrymacgp : When you see news reports on YouTube, relating to this, there are many clueless people who support Doug Ford and this. I agree with your comments.

    • Jerry, you nailed it. The 80 law profs focused on this point in their letter to Ford and Mulroney. They went right to Ford’s comment that he was elected and judges are appointed and said “This is not simply a matter of disagreeing with a court ruling. Rather, you have claimed that a majority government can not only ignore court rulings but it is also free to set aside constitutional rights….Your government’s unprecedented move to invoke the notwithstanding clause goes well beyond the size of Toronto’s city council. It is a dangerous precedent that strikes at the heart of our constitutional democracy.”
      This is very strong language from a group of highly educated and deeply concerned law professors. It is exactly the kind of push back Timothy Snyder advocates for in his book “On Tyranny”.
      I have a feeling all of us are going to be called upon to do more and more of that in the future.

  5. ronmac says:

    Wonder if Doug Ford ever considered using the notwithstanding clause to enforce his $1 beer edict.

    In all seriousness, maybe Rachel Notely should invoke Section 33 to bulk up her committment to the small brewery industry in Alberta. Outside beer industry giants have launched a lawsuit against the Notley gov’t over its craft beer polcies, claiming they were “discriminatory and unlawful.”

    • Ronmac, I love your creativity! So now all the lawyers in the room are trying to figure out how to shoe-horn someone who complains about loss of market share as a result of Notley’s policies under the relevant sections of the Charter so that the notwithstanding clause will apply or if that doesn’t work trying to use section 1 of the Charter to argue that the “discriminatory and unlawful behavior” is a reasonable limit that’s “demonstrably justified in a free and democratic society.”
      Actually the point you make is a good one…if Ford is prepared to use the notwithstanding clause on something as trivial as the size of Toronto city council there’s nothing to stop him or any other premier or the PM from dragging our Constitution into the Twilight Zone.

  6. GoinFawr says:

    If a pol is elected by anything less than 2/3 of the eligible electorate, measured by the popular vote, any legislation that requires invoking the notwithstanding clause should be put to a plebiscite

    • GoinFawr, you’ve identified the flaw in Ford’s argument that he was elected with a majority so what he says goes because the people have spoken. Sixty percent of the voters voted for someone else. He did not campaign on this and (assuming it really is a burning issue) it’s not a burning issue outside of Toronto. Even those like Gordon Gibson, special ass’t to Pierre Trudeau, who would like to see governments trigger the notwithstanding clause more often admit that “Doug Ford is not the man able to confer respectability on this approach…”
      My preference would be to stick with the norm that says it is an an extraordinary power that should be invoked only in exceptional circumstances.

  7. Graham McFarlane says:

    I have to wonder if any Conservative politician has read our Constitution and understands the role and responsibilities of each of the 3 branches: Executive, Legislative and Judiciary. Among other duties, the Judiciary is there to ensure our rights and freedoms are not trampled to death by some government of the day. Judges were once lawyers and rose through the ranks due to the respect they gained for their intellect, logic and understanding of constitutional law. They know how to take the time to analyze an issue and interpret governing laws appropriately. The judiciary is fundamental to the “rule of law”.

  8. Exactly Graham. Your comment reminded me of a tweet I saw yesterday about something Preston Manning said to a law class. He was asked whether he and other elected officials read the bills that are presented to them when they were in government. He laughed and said no, the only question we ask is: “Is it one of ours or one of theirs?” If they won’t read the bills that will one day become law, there’s little hope they’ll read, let alone, understand the roles and responsibilities of the 3 branches of government.

  9. James Carter says:

    Rob Ford’s brother has one problem: The Supreme Court of Canadia says that it cannot be used retroactively. I can hardly wait for his tantrum.

    Sent from my iPhone

    >

    • Good point James. I couldn’t get over Ford’s eleventh hour pledge not to use the notwithstanding clause if the Court of Appeal stayed the lower court’s decision. It sounded like a hoodlum holding a gun to the Constitution’s head and saying, “if you don’t give me what I want (a stay), the Constitution gets it”. In any event the Court of Appeal granted the stay, the election can proceed on the basis of 25 wards not 47 and Ford’s supporters can crow that Ford showed those activist judges who’s boss. Sadly these idiots don’t understand the nuances of this case at all.

  10. Dwayne says:

    Susan: In relation to the cuts to the number of city council members for Toronto, there are people who agree with it. There are also many who do not agree with it. For those who agree with Doug Ford, they use Los Angeles, California as their comparison. They claim that Los Angeles has a similar population to Toronto, but has fewer council members. They have 15 city council members for Los Angeles, but what is missed by these people is the number of paid staff the Los Angeles city council members have. For each council member, in that city, there is in between 18 to 25 paid staff working for each city councillor. There was a news report on the CBC yesterday, stating that Ontario’s highest court gave Doug Ford clearance to reduce the number of city council members for Toronto. Interesting. The CBC disabled the comments on that news story, that was posted to YouTube, because they knew what would be posted, which is most often bad comments.

    • Dwayne I didn’t know that CBC disabled the comments this news story. I’m sure Ford supporters across the land chimed in with all sorts of whacko takes on the decision with absolutely no understanding about what a “stay” is. That’s what’s so frustrating about all this. Ford created the mess (both the trial court and the appeal court said it was “unfair” to change the ward structure half-way through the election). Then he went nuclear and threatened to invoke the notwithstanding clause (now it’s blowing up into a constitutional issue), then he says he’ll hold off using the notwithstanding clause if the appeal court grants his stay, (and they do but for other reasons). All of which makes him look like a strong man to his supporters when in actual fact he’s nothing more than a bully. The only good thing to come out of this is Albertans are getting a preview of what they’re in for if they elect Kenney…it ain’t pretty.

      • Dwayne says:

        Susan: The CBC (and other news channels) often disable their comments on their YouTube channels, because of what gets posted. It can include off topic comments, misogyny, racism, threats to elected officials, among other bad things. I agree with your comments. I have also seen other news articles related to Jason Kenney and the UCP lately, on other media platforms. They are not doing anything spectacular, or worthy of being elected to hold office. The India trip, candidates supporting hate groups, among other bad things. I don’t see Jason Kenney getting any much farther than Jim Prentice or Brian Jean did. I also think that Rachel Notley is a very strong and intelligent leader and will be able to handle Jason Kenney very easily in the leadership debate. The NDP are doing a good job leading Alberta. It is not easy cleaning up the big mess made by the Alberta PCs, that they were doing for decades, but Rachel Notley and the NDP are doing a commendable job of dealing with it. I think Rachel Notley is the best premier of Alberta since Peter Lougheed. I do see the NDP enduring.

  11. James Carter says:

    Huh. Who’d have thunk the appeals court would bow to threats of either or?

    Sent from my iPhone

    >

    • James, although it may look that way I read the decision and the Court said Ford’s threat to invoke the notwithstanding clause played no part in its decision.

      The issue for the Court was whether the applicant (Ontario government) met the 3 part test for a stay. The Court asked (1) is it a serious issue? yes, and in cases like this where the Court’s decision on the stay will actually decide the matter before the appeal is heard the Court can give more weight to the merit of the appeal (here they decided the trial judge’s decision would likely be overturned on appeal), (2) will the applicant (Ont government) suffer irreparable harm if the stay isn’t granted, yes, because the election would proceed with 47 wards, not 25 and (3) does the “the balance of convenience” favour a stay, yes, because courts rarely interfere with a duly enacted law in the absence of a complete constitutional review (which won’t happen until the appeal is heard).

      The part that troubles me is the Court’s conclusion in (2), I don’t know why the government of Ontario would suffer “irreparable harm” if Toronto elected 47 councilors instead of 25; unfortunately the Court didn’t explain why they thought this would be the case.

      Here’s the link to the decision http://www.ontariocourts.ca/decisions/2018/2018ONCA0761.htm

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