Doug Ford Uses the Notwithstanding Clause – Because He Can

There were some concerns that Ontario Premier Doug Ford would be slow to transition from campaigning to governing after winning a majority in the June provincial election. To be fair, there were plenty of hints during the summer session that he wasn’t quite ready to shut down the campaign.
 
But there is no doubt today.
 
The campaign is over. The Ford government is in full blown governing mode. 
 
The Premier has made it abundantly clear that he will do pretty much what he wants, when he wants – because he can.
 
He commands an unassailable majority in the legislature. That means he sets the agenda. He drives the agenda – because he can.
 
That point was made unequivocally when Ford announced his intention to invoke the Notwithstanding Clause in Canada’s Charter of Rights and Freedoms to override the Ontario Superior Court ruling that declared his Better Local Governments Act unconstitutional. He dismissed any notion that it was an over reach on his part. He insists it’s the prerogative of his duly elected government to decide what’s best for the people of the province. The judge, he emphasized, was “appointed” by the former Liberal Premier Dalton McGuinty. (Not quite. Superior Court appointments are made by the PM of the day who was Paul Martin.)
 
Premier Ford simply reasoned he is using all the tools available to him to ensure his bill is enacted. He did it – because he can.

So, the Premier would be correct when he points out he is doing what is legal and allowed. It’s the same argument he used when he decided he would reduce the size of Toronto City Council.

Ford slashed Council in half - because he can.
 
So, for all the sound and fury that will consume the oxygen of the political stage in the coming days, our question and focus should be on “What does this really mean” and “What’s next?”
 
Thanks to Doug Ford, Section 33 of the Charter is now simply a political “tool” in any premier’s toolkit to use to lash back against an appointed judiciary to ensure “the agenda” of the elected body of the day is achieved. Ford is bucking the conventional view that if you invoke the Clause you are somehow ‘going nuclear’, that you are somehow going to risk a political backlash.

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The only thing that's nuclear about the Notwithstanding Clause is the reaction to Ford's decision to use it.
It is simply a safeguard to ensure provinces can maintain a balance of constitutional order on major policy issues.

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This premier has decided that the Notwithstanding Clause isn’t reserved for ‘extreme’ circumstance, i.e., insurrection or acts of war, being preached by some. It's not a 'break-glass-in-case-of-a-constitutional-emergency' tool.

And he would be correct. That was never its intention nor how it’s been applied to date elsewhere.

It’s important to know and remember that Section 33 of the Charter exists because former Alberta Premier Peter Lougheed was properly concerned that the made-in-Canada constitution would shift power from elected officials to the judiciary, giving the courts the final word. Lougheed was right then. Is he right now? Doug Ford thinks so.

And let's remember, the Notwithstanding Clause was cast as an anti-Canadian, anti-rights cudgel primarily because Rene Levesque used it first to preserve  separatist language laws in Quebec. Of course, the real irony in all of that is Levesque refused to sign onto the homegrown constitution and its companion Charter.

Quebec and the country survive that 'crisis.' Doug Ford is betting that we can and will survive this "nuclear" constitutional option.

And the Premier’s made it clear that he will happily and easily apply it whenever timing, process or a judge of the land disagrees with his own constitutional interpretation.
 
Because he can.

We better get use to it.