Queen’s Park Notes: Premier Ford and the “notwithstanding clause”

In the 36 years between the patriation of Canada’s Constitution and the inclusion of the Charter of Rights and Freedoms in 1982 and the June 2018 election, the province of Ontario had eight premiers. Not one of those premiers ever used the notwithstanding clause in the Charter of Rights and Freedoms to override the constitutional rights of Ontario citizens in order to enact legislation that had been found to violate those rights. All that changed when our current Premier, Doug Ford, began the legislative process to invoke the notwithstanding clause in response to an Ontario Superior Court decision that struck down his legislation changing the size of Toronto’s city council.

Some commentators have correctly pointed out that the government has the legislative right to use the notwithstanding clause. But even if one agrees with Ford’s dubious claims about the pressing need to reduce the size of Toronto’s council, that is hardly an issue that warrants a move so drastic as the invocation of the notwithstanding clause. As former PC premier Bill Davis recently pointed out, the notwithstanding clause is meant to be used only in “exceptionally rare circumstances.” The clause was never meant to give a provincial government an unfettered right to ignore judicial rulings.

The legislative process invoking the clause was halted when the Court of Appeal overturned the Superior Court decision, but Ford’s earlier assertion that he would be prepared to invoke the clause in the future if the courts block his political will is still very disconcerting. It’s apparent that the premier thinks his majority government gives him the right to simply do as he pleases, and this constitutes a serious danger to democracy in Ontario. He clearly fails to understand that the Charter of Rights and Freedoms exists for the very purpose of preventing the majority from imposing its will in a manner that violates the rights of any citizen. The “tyranny of the majority” is exactly what the Charter is meant to protect against. Ford also fails to understand that one of the functions of the courts is to act as a constraint on government and to ensure that legislation complies with the Charter.

Premier Ford’s misunderstanding of these basic principles of our constitutional democracy is troubling in the extreme, and his stated intent to use the notwithstanding clause to override the courts whenever he sees fit should be of grave concern to everyone in the province.