09.12.2018 01:25 PM

Bill Davis: a Canadian political giant speaks

From Steve Paikin’s spot:

As a rule, former Progressive Conservative premier Bill Davis has avoided weighing in on controversial issues since he retired from public life in 1985. He is still interested in political developments but has been content to wield whatever influence he may have almost entirely behind the scenes.

Still, of the 11 first ministers who, 37 years ago, hammered out that historic constitutional compromise, only three are still alive. The 89-year-old Davis is one of them — and he knows what his colleagues had in mind when they created the notwithstanding clause all those years ago.

“Making the Charter a central part of our Constitution, Canada’s basic law, was a deliberate and focused decision by the prime minister and premiers,” Ontario’s 18th premier explained over the phone yesterday.

“The sole purpose of the notwithstanding clause was only for those exceptionally rare circumstances when a province wanted to bring in a specific benefit or program provision for a part of their population — people of a certain age, for example — that might have seemed discriminatory under the Charter.

“The notwithstanding provision has, understandably, rarely been used, because of the primacy of the Charter of Rights and Freedoms for all Canadians. That it might now be used regularly to assert the dominance of any government or elected politician over the rule of law or the legitimate jurisdiction of our courts of law was never anticipated or agreed to.”

This has been another in a week of extraordinary developments. Davis has had ample opportunity over the 33 years since he retired from public life to comment on government policies with which he’s disagreed. He virtually never goes there.

But clearly, Davis sees the Ford government’s decision to use Section 33 as so far outside the bounds of the original spirit of the clause that he’s set aside his normal reservations.


  1. Miles Lunn says:

    Most past leaders think this was inappropriate. This is what happens when you elect a populist who is ignorant how government works.

  2. Matt says:

    And he’s entitled to that view, however:

    “That it might now be used regularly to assert the dominance of any government or elected politician over the rule of law or the legitimate jurisdiction of our courts of law was never anticipated or agreed to.”

    IF Emmett Macfarlane and others are correct in their opinions, the judge in this case didn’t follow the rule of law or the Charter. He in fact “Macguyvered” the charter essentially creating a new section to fit his ruling AND mashed parts of various sections like s.3, s.2 and s.2(b) together despite there actually being 3 SCC precedent setting rulings saying that can’t be done.

    Those same people believe the judges decision will be overturned on appeal. Is the action by Ford using a hammer to swat a fly? Yup. But he also sees his opponents plans for the next 4 years. Challenge everything he does on Charter grounds. They have now launched 7 Charter challenges and he’s only passed 5 bills.

  3. whyshouldIsellyourwheat says:

    Alan Blakeney diaagrees:

    In this paper I argue that the framers of the Charter selected specific rights and freedoms for constitutional protection knowing that infringements of those rights by the state would appropriately be dealt with by the courts. The decision to leave other rights out of the Charter was made knowing that those other rights would best be enforced by the legislative, executive, and administrative arms of government. Section 33, the “notwithstanding” clause, was included in the Charter to ensure that the state could, for economic or social reasons, or because other rights were found in the circumstances to be more important, choose to override a Charter-protected right. This involves an acceptance of the idea, which I believe to be
    correct, that the rights enumerated in the Charter are not more important than other human rights. The belief that the rights enumerated in the Charter are somehow more important than other human rights is unsound. The Charter should not be regarded as creating a hierarchy of rights. The rights included in the Charter were selected not because of their importance, but rather because of the way they were to be defined and enforced. Where the likely violator of a human right is the state, and where enforcement is largely by way of prohibition of state action, the best instrument for enforcing the right is the judicial system. Conversely, where the likely violation of a human right stems from the operation of the economic and social systems, then the best instruments for enforcing these rights are the legislative, executive, and administrative arms of government. I contend that in the protection of human rights there will be instances where rights collide, and that there will need to be a mediating mechanism. Section 1 of the Charter can serve such a role. Section 33, the “notwithstanding” clause, can also serve such a role. But neither can serve the role adequately unless it is made clear to the public how each functions and what its purpose is. The public cannot be properly informed if the language used in Charter discourse refers to a “suspension of rights”3 or a weighing of the “relative importance of rights
    and legislated social purposes”4 when either section 1 or section 33 is invoked.

  4. Gord Tulk says:

    Bill Davis proto-CINO.

    Funny he never raised this as a risk all those years ago…

    • Michael says:

      I guess Davis could not have imagined the likes of Doug Ford back then. Political aspirants didn’t generally and steadfastly defend crackhead mayors who hung out with criminal gangs. If Doug is so concerned about fixing Toronto, why didn’t he have the moral compass, good judgement, or balls to haul his brother’s ass out of city hall?

  5. Robert White says:

    Given that former Premier Bill Davis has stepped up-to-the-plate and sanctioned the frivolous use of the notwithstanding clause by the Feudal Lord Ford Government of Ontario, we can now conclude that there is at least still one member of the Ontario Progressive Conservative party that has not gone completely insane like the rest of that cohort residing in our legislature at Queen’s Park.

    Bill Davis still has the right stuff IMO.


  6. Westguy says:

    While I disagree with Ford on this one I find it interesting with all “the sky is falling” coverage of how using the clause will set a precedence and endanger our democracy. I don’t remember this kind of reaction for all the, what has it been, 15 times the clause was used up to this point.

    • James Smith says:

      Perhaps because its never been used :
      1) In Ontario
      2) For no objective reason (ie to solve gridlock that doesn’t exist & will cost more money than it might save)
      3) To effect the outcome of an election already underway
      4) Without notice, debate or consultation
      5) By a person to wet his appetite for settling a personal grudge

    • Matt says:

      Didn’t you hear?

      A democratically elected government using a tool provided to the by the Constitution and the Charter of Rights and Freedoms is now considered an assault on democracy by a dictator.

      Don’t recall anyone complaining about the PQ putting section 33 language into essentially every piece of legislation they passed.

      Look I don’t expect everyone to like what Ford is doing. Frankly I would have preferred he pass legislation to postpone Toronto’s election for 6 months and allow the appeal to go through the courts.

      • doconnor says:

        I’m sure some of them did complain about what the PQ did, but those laws where still subject to the Quebec Charter.

        If Ford loses a couple more cases, I expect he will starting doing that too.

      • Gyor says:

        Lots of people complained, I have no supported any of the uses of the clause. And it’s been used 5 times, at least one of which came to nothing because Ralph Klien was a moron and couldn’t figure out marriage is federal jurisdiction.

        Trudeau could, stop Bill 5 right now by using disallowance, but I don’t think he has the courage to protect Ontario.

  7. Peter says:

    This is highly questionable. If discriminatory social programmes had been the “sole purpose” of the notwithstanding clause, it wouldn’t have been rocket science to craft clear wording to that effect. Quebec was very concerned the Charter would restrict it’s capacity to protect the French language and has since periodically raised the spectre of invoking it for that purpose. The Indian Act and other aboriginal laws would be vulnerable to judicial challenge without some failsafe to protect “positive discrimination”. There was also concern about the Emergency Powers Act govermental capacity to respond to a civil emergency. The first ministers were very sensitive about having their jurisdictions circumscribed by unaccountable judges.

    However, they probably would have been horrified by both a premier using it to ram through municipal council legislation and a judge using the Charter to void same.

  8. Matt says:

    So it appears the NDP have decided the best way to oppose Ford on this is to literally throw a temper tantrum like a bunch of 2 year olds pounding on their desks and stomping their feet until they were actually escorted out of the House one by one.

  9. James Smith says:

    The greatest steaming load in this debate is the falsehood of Unaccountable Judges Making Law:
    1) They are accountable
    2) Decisions are open to appeal
    3) If a law doesn’t meet the Charter craft a law that does

    Notwithstanding should be removed, or failing that be changed to something similar to the way the constitution is amended 2/3 of the legislature with at least 50% support from the opposition parties. Never will happen as vested interests always get what they want.

    • Peter says:

      When people talk about judges being unaccountable, they mean unaccountable to the electorate, not unaccountable to appellate courts.

      Charter rights have expanded considerably since the 1980’s, which is fine to the extent that reflects evolving societal values. What is making me shake my head here is how many people seem to have convinced themselves that voting in a municipal election is or should be a Charter-protected right. Municipalities are provincial creations. There is no mention of them in the Constitution. No one doubts a province would be legally entitled to change or even abolish them without explanation or apology, so what in the world was this judge doing? Can we now expect court challenges to bills changing the structure of municipal government in Renfrew county? Of course we can.

      Clearly what is going on here is a garden variety political dust-up. Ford is behaving like an autocrat over an issue that most in the province couldn’t care less about and he is wasting a lot of political capital. over it, not to mention being frivolous with the notwithstanding clause. He’s as guilty as that jusge of “constitutionalizing” a matter that shouldn’t be constitutionalized. He appears to be more interested in settling old scores with political adversaries than reforming or rationalizing municipal government. However, the Charter isn’t supposed to be an all-purpose tool to check unpopular political initiatives. If it becomes such, we’re headed inevitably to the kind of politicized judiciary our neighbours have, which was one of the concerns many had when the Charter was first enacted. Do you want a Supreme Court where the judges are chosen and readily identified by the public as reflecting this or that political affiliation?

      Anyway, if Ford is thwarted, just what do you think is going to happen the next time Toronto submits its budget to Queen’s Park?

      • CanadianKate says:

        ” What is making me shake my head here is how many people seem to have convinced themselves that voting in a municipal election is or should be a Charter-protected right.”

        Perhaps because the framers of the Charter didn’t realize this was something that was at risk of being tromped upon.

  10. John W. says:

    This from John George Diefenbaker in 1960 speaking on his early Bill Of Rights

    “I am Canadian, a free Canadian, free to speak without fear, free to worship God in my own way, free to stand for what I think right, free to oppose what I believe wrong, free to choose those who govern my country. This heritage of freedom I pledge to uphold for myself and all mankind.”

    Notwithstanding clause allows a duly elected government to take these rights away. These were later stated in the Charter.
    Good time to go back to the Magna Carta and US Declaration of Independence and Bill of Rights. We have self evident rights which supersede the wishes of the governments of the day, or even the King!

  11. Matt says:

    There won’t be a court challenge.

    Bill 5, now Bill 31 is immunized against further challenges by using the Notwithstanding Clause.

  12. Matt says:

    And yet another group has filed a lawsuit against the Ford government on Charter grounds.

    Greenpeace filed Tuesday claiming Charter rights violation with Ford’s planned cancellation of cap and trade.

  13. BMarcille says:

    Come on. This ruling was over-reach in the extreme. Legal council told the City to save its money. But they got a McGuinty nominated, Paul Martin-appointed judge who had no reservations about politicizing the court.
    Bill Davis may not have foreseen this use of the NWC (willfully blind) but he was equally fooling himself in thinking judges would never apply the charter in a self-righteously broad, unintended manner.
    Trampling freedom of expression, my arse.

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