, 09.13.2018 07:34 AM

The constitutional beast is back

From next week’s Hill Times:

And that, to me, is Doug Ford’s biggest problem. Not that he overturned a court decision everyone expected him to win. Not that he used a constitutional provision no one knows about. Not any of that.

No, Doug Ford’s big problem is this: he has done the thing that Canadian voters most dislike – he has put the Constitution back on the agenda.  He has sent the constitutional cottage industry into overdrive. He has gotten us talking about the thing that most often divide us. That brings out the worst in us.

Trust me here. I was privileged and honoured to work for the greatest politician this country has ever seen, Jean Chretien. He didn’t lose a single election in 40 years. He did that, mainly, by saying this: “Vote for me, and we won’t talk about the Constitution.”


  1. Robert White says:

    Prime Minister Jean Chretien is our best PM ever, I agree. At no time during his tenure did I get upset by his leadership, and often I was content with his governance. Moreover, no politician in CANADA has the wit of Mr. Chretien or his ability to make people laugh. Chretien is brilliant as a legislator and endearing as a Canadian politician. Not many politicians have the ability to be endearing & lovable as Mr. Chretien obviously is, and has been historically. He is my favorite PM of all time for sure.
    Trudeau the elder is my second favorite.


    • Holly Doan says:

      Like you, I’ve been around from Mulroney to Trudeau and it’s astonishing how fast academics and media jump enthusiastically into a constitutional debate. All while cautioning how dangerous it is to go there. Former PM Kim Campbell said a very smart thing to me in an interview once, ‘for gawds sake don’t push that button.’ Exact text:

      “We all have buttons you can push, In Canada, the regional buttons are there to be pushed, but the problem is, once you push the buttons, what are you left with? Are you left with a configuration of people who can solve problems? Or are you left with simply a fragmentation of power and the people who’ve been angry and said, “We’re going to show you.”

      I think of this when I see Emmett Macfarlane, Carissima Mathen or even Susan Delacourt talking about the “C” word. They. Love. It.

    • Holly Doan says:

      We’re told don’t invoke the constitution, it’s dangerous. And yet the academics and media pundits love it, don’t they? Can’t wait to talk about it. Is it possible they mean only WE can talk about it? Here’s an excerpt from an interview I did with Kim Campbell. Wise.
      “We all have buttons you can push. In Canada, the regional buttons are there to be pushed, but the problem is, once you push the buttons, what are you left with? Are you left with a configuration of people who can solve problems? Or are you left with simply a fragmentation of power and the people who’ve been angry and said, “We’re going to show you.”

  2. Peter says:

    I basically agree with you, but surely Ford would say with justification that he didn’t start it, he is just responding to a loony decision where a judge found a new Charter right no-one dreamed existed. Still a bad move, though. The irony is that if he had appealed, he may have had all or several provinces intervening to support him. Instead he’s made himself radioactive. Just what calamity does he think would befall us if Toronto went with the larger council for one more term?

    • doconnor says:

      Thr calamity is more debate over whether the Scarborough SRT should be replaced with an LRT or subway. He is embarrassed by all the evidence supporting an LRT over his beloved subway.

      • Matt says:

        Let’s see how the LRT holds up to a Toronto winter.

        The Scarborough LRT was out of service for 8 or 9 days last winter and it wasn’t even that cold or snowy.

        I grant you the Scarborough LRT is old and the new Eglinton Crosstown may have new technology to deal with the winter, that remains to be seen.

        • doconnor says:

          It seems you have almost fallen for some anti-LRT propaganda. The Scarborough LRT would use exactly the same technology as the Crosstown and they could even be interlined. Overhead wires are quite safe from the snow.

          • Matt says:

            The Scarborough LRT doesn’t use overhead wires and if the current construction at Kennedy Station is any indication, the two won’t be interlined.

            And it’s not just electrical problems, it’s what the elements do to the tracks.

            Hell, even in the summer heat and humidity Go Train service is disrupted because of track issues.

          • doconnor says:

            The current Scarborough SRT doesn’t use over head wires and everyone agrees it needs to be replaced.

            The debate is replacing it with a much longer and cheaper LRT (with over head wires) or an underground subway. The subway is current choice of council and is in the design phase.

    • Matt says:

      They HAVE launched an appeal.

      They used the Notwithstanding Clause because there isn’t enough time between now and the election for the appeal to be heard and decided. Plus I would think they want to have an appeal victory in their pocket to prove Justice Belobaba over stepped.

      And this morning, Toronto council is holding another emergency meeting.

      Not to ensure an orderly, smooth 25 ward election mind you. No no.

      They are desperately trying to find a way to stop the new Bill 31 (formerly Bill 5)

    • Matt says:

      “Instead he’s made himself radioactive. Just what calamity does he think would befall us if Toronto went with the larger council for one more term?”

      Made himsef radioactive to whom? A bunch of downtown Toronto progressives who would never vote for him anyway? Their “massive” protest at City Hall last night could only muster 350 or so.

      • Peter says:

        No, not just to downtown progressives. I wouldn’t call myself a progressive in today’s sense and I’m not a huge Charter fan, but it’s there and there has always been a widely held consensus that the notwithstanding clause is a hammer to be used rarely and judiciously. It’s akin to a kind of extraordinary emergency power. Wisdom of our ancestors, etc. In some ways I would say the same about Charter rights themselves. To wield either of them casually as part of polarized day-to-day political dust-ups (it’s about a subway! Really?) is a development everybody who cherishes democracy will come to regret, except perhaps the legal establishment.

        Have you noticed how politics in the States and even here in the past twenty years has come to focus increasingly on challenges to legitimacy? Trump, Obama and Bush were all dogged by them throughout their terms and so were the Fords and Harper here. No soon is an election over than half the population starts screaming about popular votes, electoral system deficiencies and their blessed (and dubious) constitutional rights. It doesn’t bode well for the future of democratic government.

        It’s seems pretty clear that many progressives, especially in Toronto, cannot and will not accept the legitimacy of Ford’s election. Too bad for them, but he really should avoid waving red flags at them, which is just a political gift.

        • doconnor says:

          Ford made a ridiculous, last minute change to the city election because of the subway. He should expect a push back.

          • Matt says:

            Changing the size of council because of a subway? Where are you getting that from?

            He can upload the TTC from the City to the province at any time.

          • doconnor says:

            He constantly says he is doing this because Toronto CityCcouncil is dysfunctional. The LRT vs Subway debate is the only issue where that is remotely true.

    • The Doctor says:

      I agree that the “Charterization” of this issue by the original litigants and the judge seems a bit of a reach, but there we are. I’m reminded of Jeffrey Simpson’s writings in the years after the Charter came in, and how it spawned a whole host of “Charter Canadians” who see everything and anything through the lens of the Charter. Help, I’m being oppressed! Most ordinary people see a Charter right as some fundamental life and death thing like a right to religious freedom or freedom of speech. Expanding your electoral district? Really? I’m not a fan of Ford at all, but I find the hyperbole from his opponents to be a bit much.

  3. Mezba says:

    I think will Ford will get away with it. Not only does he have the right to use section 33, but in this case he is right to do it. An activist judge tried to derail him without due cause.

    I wrote a longer reasons why this will be popular here.

    • KmmF says:

      Great points, Mezba. If anything, this fight seems to provide a stronger rationale for the Province of Toronto(tm), #TorontoVsEverybody.

      This is the perfect catalyst which Warren has (tried) to checkmate in this article as though a province is not possible. But it’s an amazing campaign booster for Keesmatt to bargain for a Province and squeak through as the next mayor. She has no marketing instinct if she fails to seize the spotlight, all networks ignored her (as a Horvarth’s shadow ) last night. Think big and risk winning.

      The strategy is to push for change and then win the mayoralty. It positions her against Doug Ford (who folks want to punish in some way, the mayoral race is the conduit). Then say, when Keesmaatt elected she’ll look into and collectively we decide on a path for more funding, really stick it to Ontario.

      The Province of Toronto gets people thinking. It’s a sticky and irreverent policy objective. The secede attack videos really crushed Keesmaatt but she needs to double down for media time.

  4. Mike Jeffries says:

    My small opinion is that the judiciary is there to protect us from politicians and it serves that purpose well.
    However, what is there to protect us from the judiciary? In a democracy the will of the people should prevail over activist judges of which in my small opinion there is increasing room for that to happen!
    Yeah, I get what Chretien did with that. But, this judge went to far using the Constitution to veto a democratically elected Premier who is doing what the ordinary man on the street sees as a waste of money with To. councilors whose number baffles when compared to the number in larger cities like LA and London, England.
    Where the alt left see Ford using a “nuclear” option to deal with this. It WAS the judge who first used that option whose result he well knew would STOP Ford because by invoking the Constitution the judge knew its subsequent appeal wouldn’t be solved in Ford’s tenure as Premier! He knew that for sure which makes his own “nuclear” judgment the more hideous to me.

  5. Steve T says:

    I partially agree with you, WK, but I’d say there is another topic that Ford has re-opened with his actions: our trend towards activist judges.

    This was a hot topic of debate during the Reform / Alliance years, and it resonated with a lot of people. Judges in Canada can insert their political opinion as a legal absolute, and handcuff court decisions for generations to come. The Gladue decision and the Jordan decision are key recent examples.

    • The Doctor says:

      Not to mention the Federal Court of Appeal with all the Trans-Mountain and similar decisions. It’s made our major project approval process completely dysfunctional, absurd and pointless for project proponents, something out of a Beckett play or a Kafka novel. I don’t see how that is good for Canada as a whole.

  6. Warren,

    Can that really be right? A municipality invoking Section 33?

    Maybe those activist-judges in the appellate courts will have plenty to say about this.

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