09.10.2018 10:08 PM

‪Eugene Forsey on s. 33


  1. DaveTheAutoWorker says:

    Eugene Forsey believes unelected judges know what’s best for the electorate, obviously. Japanese Canadians in WWII? That’s at best a straw man for the 20+ do-nothing councillors at Toronto City Hall that prance, bloviate, grandstand, and suck off the public teat. No one in their right mind thinks those two groups are equivalent.

    • Derek Pearce says:

      Will your opinion change on a dime if Justin uses the Notwithstanding Clause? I want him to declare all guns illegal even if he didn’t campaign on it. And use the clause to ram it down people’s throats. See how it feels.

      • Miles Lunn says:

        He can declare guns illegal as there is no constitutional right to own firearms so whether good or bad policy, he doesn’t have to worry about that running afoul with the Charter. While an outright gun ban is going too far, banning hand guns and semi-automatics is a great idea and it is looking more and more like it will be done.

    • Westguy says:

      Its interesting that Derek would cite the handgun issue in this case because I had a similar question. If the feds were to ban handguns, could a province use the Notwithstanding Clause to negate it on the basis of property rights.

      • Miles Lunn says:

        There is no property rights in the constitution just common law. There is section 8 which is search and seizure and it is possible that could cause some trouble, but they have two easy options around this without using the notwithstanding clause.

        1. Grandfather existing gun owners as they have done in the past when weapons are prohibited (this is probably the most likely course of action).
        2. Do a buy back (as Australia did).

        As long as they offer full monetary compensation or grandfather existing owners they should be fine otherwise this would prevent governments from ever banning anything.

        The biggest challenge Trudeau faces on the charter is the attestation for summer jobs that will be interesting, but I am pretty sure if he loses, he might appeal it but if the SCC rules against it he won’t invoke the notwithstanding clause.

        • Matt says:

          Full monetary compensation would run into the multiple billions of dollars just for handguns. Add “black rifles” (AR types) into the ban and it’s multiple billions more.

          Not going to happen.

          • Miles Lunn says:

            Australia was under a billion and while their firearms ownership rate was only about half ours and they had a smaller population is not likely to be huge. While risky, he could always add a temporary tax like Australia did as they raised the Medicare Levy by 0.2% to fund it so it is doable. I think the main reason they may not do it is more the gun lobby is very aggressive. Most support banning both, but its not a top of mind issue whereas the minority who oppose such bans are more likely to vote on it. Although to be fair I suspect most gun owners are probably already Conservative voters anyway so only in really close races will it make a difference.

      • doconnor says:

        The notwithstanding clause can’t override the jurisdiction rules in the Constitution and there are no property rights in the Constitution.

      • Matt says:

        The Constitution doesn’t protect property rights in Canada like others contries do. The Charter does not directly protect property rights.

        Certain sections like 8, 15 and 26 do affect property in other ways.

  2. Gord Tulk says:

    Forsey was dead wrong on this and quite a few other constitutional issues.

    Ford’s use of the NC is absolutely the right thing to do to repulse such egregious judicial overreach.

    Maybe it will spur Canadians to examine our system of court appointments and see how flawed it is.

    • Derek Pearce says:

      I think the federal govrt should declare all abortion legal, lets leave the grey area behind. Right up til 8 months and 28 days, if you want an abortion it’s yours. And use the Clause to do it. Too bad if you don’t like it Gord, too bad if it wasn’t campaigned on. Take your medicine!

      • Gord Tulk says:

        There is no law regarding abortion currently. There is no grey area. The NC could be used to reverse that.

        Until the court appointment process is fixed – and that would require EEE senate reform (a lot closer with premier ford) the NC should not be eliminated.

      • wes w says:

        It’s already like that Derek.

    • James Smith says:

      Your argument is flawed. The judge noted Ontario had the right but not in the midst of a campaign. (Not to mention it was a bolt from the blue, with not even the pretext of consulting with “Folks”). Why are the vested interests always so afraid of “judicial overreach” ? I’ll tell you, because they want to protect vested interest. Where is the outrage from the “freedom of speech” (ie bullshit) set on the issue of government by fiat & royal decree? Please find another finger & ask me to pull it.

  3. Miles Lunn says:

    I think the big mistake was not to put on threshold on it being used. A simple majority in parliament leaves it open to abuse, instead it should require a large majority like 2/3, 3/4, or even 80% of the legislature voting in favour so that would ensure it has multi party support and is not abused. The notwithstanding clause is no different than a country having nuclear weapons, it is there for extreme cases, but its something you hope you never have to use. Clearly Ford’s use of it is totally inappropriate and an abuse of it. It should only be used in extreme and unforeseen circumstances and with strong support across the spectrum and hopefully we never get to that point.

  4. Kelly says:

    He’s already said he’s going to use it again but won’t say for what. I fear you were wrong, Warren. There’s plenty to worry about with Doug Ford. He is now officially a menace. He just made it OK for any future lunatic — from any party — to utterly wreck this country as they see fit.

  5. Doug Brown says:

    What would it take to abolish Notwithstanding? Good luck if it requires a Constitutional amendment as the risks would vastly exceed any rewards (ex. another Quebec referendum). The political legacy of the early 80’s seems to be disfunction.S

  6. Peter says:

    I really doubt Mr. Forsey would have put reducing the size of Toronto’s Municipal Council in the same basket of violated “fundamental freedoms” as the internment of the Japanese-Canadians in WW11.

    Those who deify the Charter (generally, but not always, progressives–it depends on who is in government.) and want it’s scope extended forget how undemocratic it is. It’s power is under the absolute control of an unelected, unaccountable judiciary appointed exclusively from one profession for life. They are almost impossible to remove. They are the Lords Spiritual and Temporal of our age, although the original ones tended not to be as smart-ass as this one.

  7. High taxation, lower representation says:

    This is a crazy start to a crazy government, that was supposed to be about targeting “billions in waste” and “hallway healthcare”. It’s petty and has gone from a distraction, headed to a dumpster fire. Time to put on seatbelts tho, I remain shocked that the Party in Waiting, which could have elected a ham sandwich, took out the last joker and replaced him with this clown.

    I thought Coyne was spot on this am-
    “ the comparisons to Donald Trump look a whole lot more convincing after Monday’s performance. Ford’s more moderate colleagues, the ones whose presence in cabinet was supposed to be a reassuring check on Ford’s instinct for chaos, will need to search their consciences today.”

    Starts with the AG, who split the leadership’s rational vote and made him.

  8. doconnor says:

    Steps to take before using the notwithstanding clause to deal with “activist judges”:

    1. Exhaust all appeals
    2. Consider if what you are doing is right
    3. Consider if there is another achieve what you want
    4. Consider if using the notwithstanding clause will create a dangerous presidant

    Obviously none of this was done in this case.

    • whyshouldIsellyourwheat says:

      Exhausting all appeals means a few lower court judges can completely thwart an elected government during its term since the judicial process is so slow.

      Using the notwithstanding clause against a bad decision by a lower court, while pursuing the appeals process is an appropriate use of the notwithstanding clause.

      The nothwithstanding clause is temporary. It lasts for only five years and then has to be re-invoked.

      Using the notwithstanding clause against a Supreme Court decision is more problematic. Against judicial activism in lower courts, not so much.

  9. David_M says:

    So, what’s the plan here for Doug?
    Lay the foundation stones for the resurrection of the LPO and send the PCPO back to the wilderness for another 15?
    If he’s going to insist this needs to be done RIGHT NOW come hell or high water and his MPP’s back him all the way its going to be pretty revealing as a petty retaliatory exercise.
    This can’t be disguised as the ‘will of the people’, our public education system isn’t that broken… yet.

  10. Luke says:


    I am a know-nothing-dumb-dumb about the law. How do you feel about the judge ruling that Ford’s measures were an affront to freedom of expression? I’m not surprised the judge wasn’t supportive, but it seems a strange pathway to overruling the plan.


  11. Matt says:

    680 News in Toronto is reporting that, and I think I heard it correctly, there is a meeting going this morning between people and the judge in this case to try and figure out the next steps to prevent Ford from using the Notwithstanding Clause.

    I don’t care what side you’re on here, but if true, that seems highly, highly inappropriate.

  12. Christian says:

    I hope you have forwarded this along with your dismay at the Premier’s proposed use of Section 33 (to obviously fulfill a petty desire for vengeance) directly to Mr. Ford.

  13. Doug Brown says:

    The more I think about this, the less outrageous it appears. Invoking Notwithstanding over the size of a City Council is huge over reaction, but so was the original legal challenge. Maybe Ford is signaling that he won’t pick his battles until his opponents do the same. I would lump the court challenges about the sex ed curriculum into the same frivolous category.

  14. Corey of the prairie says:

    I am curious if any of the commenters here supporting Ford’s use of s 33 are Toronto residents?

    Do they understand the complexities of municipal government, and the issues Toronto faces?

    I also am curious what they would have to say if Wynne had pulled this stunt in the middle of an election in their home municipality?

    “I’m just asking questions”, as the partisan pundits like to say 😉

    As a simple prairie man, I don’t have skin in the game and can’t pretend I know a thing about Toronto’s City council.

  15. Robert White says:

    I would honestly like to hear what Mr. Cretien has to say about this given his history on the subject matter for contemporary discourse in CANADA. Obviously, we are now going to see all the premiers doing the same thing if we don’t lock the notwithstanding clause down to ‘only in extreme cases’ must it be applicable. Moreover, notwithstanding is primarily a federal mechanism of last resort. Taking the shortest possible path to management of populations is not conducive to our shared democratic process. Feudal Lord Ford is power-tripping all over everyone in Ontario & CANADA with this incompetent thinking that will never manifest in what he is after.

    Absolute power corrupts absolutely, eh.


  16. Derek Pearce says:

    Also, if Caroline Mulroney goes along with these she’s a sell-out and dead now to a wide portion of the electorate. She should quit.

    • Matt says:

      And you’re basing that on what, other than your own opinion?

    • Matt says:

      Should add Ford is using a tool made available to him by the Constitution.

      You can argue that tool shouldn’t exist. But it does.

      You can argue he shouldn’t be using it here. OK.

      You can say he’s using a sledge hammer to swat a fly. That’s fine.

      But he’s doing nothing illegal.

      • doconnor says:

        It is legal, but it sets a precident that profoundly weakens the Charter of Rights. If Caroline Mulroney things the Charter is worth protecting, she should resign rather then stand with this legislation.

        There should be enough Conservative MPPs to defeat this and vote non-confidence in Doug Ford and replace him with Christine Elliot rather then follow him on his mad quest ro get revenge on left-wing city councillors.

  17. doconnor says:

    It will be interesting to see which Conservatives vote against using the notwithstanding clause.

    It will be interesting to see which Conservatives vote against having any debate or hearings about using the notwithstanding clause.

    • whyshouldIsellyourwheat says:

      Pierre Trudeau put the notwithstanding clause in the constitution.

      It is a valid legislative option for any duly elected federal or provincial government in Canada. It is temporary.

      If it was being used against a Supreme Court decision, it might be worthy of some debate.

      But it is being used against a poorly decided activist lower court decision…a decision that will likely be overturned on appeal.

      The “progressive court party” in Ontario is intending to use the courts to obstruct and nullify the provincial election, by forcing judicial review of everything.

      • Matt says:

        It’s pretty obvious that the anti Ford forces are going to challenge pretty much every decision his government makes with a claim of Charter rights violation.

        The Toronto council cut – Violation of charter rights challange upheld by the court, but most legal scholars who have weighed in call it judicial over-reach.

        Scrapping the 2015 sex ed curriculum Two Charter challanges. One from a young (IIRC) lesbian student and one from the Elementary Teachers Federation of Ontario. Neither of which have gone before the courts yet.

        So, yeah. I do think enacting the Notwithstanding Clause here and his threat to use it again was a shot across the bow of the judiciary. Stick to the law and stop with the activism from the bench.

  18. Thumper says:

    Well it looks like a lot of Toronto’s Marxist social justice warrior councilors are going to have their snouts pull out of the public trough! Good going Doug Ford!
    What kind of moronic mentality believes that it’s more democratic for appointed activist judges to legislate from the bench rather than have laws passed by an elected legislature?

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