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).
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 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.