, 09.13.2018 01:33 PM

The pith and substance of the s. 33 debate, in ten pithy points

  1. The courts should not be supreme.  The people’s representatives should be.
  2. Most judges think they are smarter than all politicians.  They may well be, but elected people should have the final say.  Not unelected ones.
  3. Legislatures, and Parliament, have the right to use section 33.  Alberta, Saskatchewan and Quebec have done so.  No Prime Minister – including Conservative ones – has ever done so.
  4. Pierre Trudeau didn’t like section 33.  Neither did Jean Chretien.  But Chretien told Trudeau the truth: if he didn’t agree to it, the Conservatives Premiers – and they all were Conservatives, pretty much, back then – would never sign on.
  5. The notwithstanding clause is not permanent, by the way.  You have to renew its application, every five years.  An election is how it is reviewed.
  6. When you use it, you have to explicitly state you are disregarding the Charter of Rights.  Not a good thing to ever do on paper, politically.
  7. There is a disallowance clause in the Constitution, true.  It hasn’t been used in a 100 years or something like that.  If it ever was, it would be swiftly struck down by a Court for that very disuse.
  8. Using section 33 for a few city council seats is overkill.  It is a mistake.  If the Ontario PCs had simply promised to reduce the size of council in the election, all of this could have been avoided.  They didn’t.
  9. Toronto city council should be smaller – it should have no more seats than the provincial and federal legislatures have to represent the same piece of real estate.
  10. So, Ontario has the right to do this.  So, elected representatives should be supreme, not unelected judges.  So, city council will benefit from being smaller.

But this was an avoidable mistake.  And it will follow its authors around for a long, long time.

 

41 Comments

  1. Miles Lunn says:

    Well said and agree with most.

  2. Warren,

    This is small potatoes compared to the highly likely profile on the Quebec horizon:

    https://www.msn.com/fr-ca/actualites/other/immigration-legault-veut-%C2%AB-un-mandat-%C2%BB-pour-n%C3%A9gocier-avec-ottawa/ar-BBN1jRR

    Trouble is, Mr. You Know Who ain’t exactly federalist. (Doesn’t like that word.) Get out your headache remedies or valium — and pass some on to Trudeau.

  3. doconnor says:

    Conservatives, I ask you, if this isn’t enough for you to oppose Doug Ford, what will it take?

    There will be other enemies he will create and other court decisions that won’t go his way. That’s part of being Primier. Do you have any reason to believe he won’t use his power for revenge again and again.

    • Matt says:

      Oddly, no progressives questioning Justice Belobaba’s over-reach. Just the court must be obeyed. Can’t wait to see their reaction when it’s overturned on appeal.

      Meanwhile:

      Twenty five Toront Liberal MP’s sign letter condemning Ford’s use of the Notwithstanding Clause.

      https://www.thestar.com/news/canada/2018/09/13/twenty-four-toronto-mps-urge-rejection-of-fords-plan-to-use-the-notwithstanding-clause.html

      Might not go over as well as they think it will.

      • Mike Jeffries says:

        The “progressives” are so high on their cannabis that they can’t see the forest for the trees! What is absolutely LOST in this is the elephant in the room. Ontario finances are OUT OF CONTROL (understatement). The judge goes nuclear with the constitution WHY? Doesn’t he realize money MUST be saved by this gov’t elected to do just that! The ordinary man on the street with grade 8 education sees that spending is out of control with a ballooning deficit! It must be stopped or ELSE. Talk to Roy Romanow who became Premier of Sask. and the province was bankrupt. For an NDP gov’t to close up to 50 hospitals was big. But he had no choice. The learned judge who isn’t an accountant can’t see the fiscal mess of Ontario or else he doesn’t care. He should think about that! More money must be saved. Ford has no choice to use this clause in the future if his fiscal management is stopped by nonsensical constitutional challenges!

        • Warren says:

          Why is somebody in British Columbia so worked up about this?

          • Mike Jeffries says:

            “So worked up”? Because I’m seeing my Alberta neighbor losing jobs because of a judge’s idea that whales are more important than people! How I wish we had federal politicians with balls like Doug Ford to do the right thing and use some common sense unlike activist judges!

        • doconnor says:

          If that is the case, why is Doug Ford spending so much effort saving a relatively tiny amount of money for a different level of government?

          • Doug Brown says:

            I’m from Alberta and I care because I want to see how Ford saves money as the number one priority for both provinces is to reduce debt by reducing operational spending.

            Shrinking Council on its own does not save much money. It may be part of a larger strategy:
            -other headcount reductions or on the way. Hitting Toronto Council first makes sense due to the theoretical ease and the lost opportunity of not doing it before the election
            -Ford plans on major reshuffling of municipal and provincial responsibilities (ex. uploading transit, downloading other stuff) and needs a more focused Council to keep up
            -using NSW now demonstrates he will do it again if opponents use tangential court challenges

            I’m waiting to see what the looney left will conjure in terms of court challenges to block say uploading of transit or province wide hiring freezes. The Teachers Unions should provide great comedy.

    • Matt says:

      Condemn him for using a tool legally available to him in the Charter of Rights and Freedoms? Sorry, no.

      And if future court cases go against him that feature a judge Macguyvering sections of the Charter to justify his or her ruling ignoring SCC precedent that it can’t be done, then yeah I hope he uses it again.

      If he loses a future case where the ruling judge actually follows the law and Ford tries to use the Notwithstanding Clause, well then yeah, I’ll say he shouldn’t be using it.

      Look, lets not kid ourselves here. We all know his opponents are going to launch lawsuit after lawsuit over ever piece of legislation they pass. Eight lawsuits over 5 pieces of legislation.

      ETFO – Charter challenge over sex ed – Cancelling the 2015 curriculum infringes the teachers rights. Really?

      Thirteen year old lesbian student Charter challenge over sex ed. Cancelling the 2015 curriculum infringes on her Charter rights. Seriously?

      Greenpeace – Charter challenge over cancelling cap and trade. Come on now.

  4. Doug Brown says:

    Amnesty International has weighed in
    http://www.thestar.com/amp/news/queenspark/2018/09/12/amnesty-international-condemns-fords-contemptuous-use-of-blatant-human-rights-escape-clause.html

    Toronto politics are a joke. Will Ford be have to account to the United Nations?

    • Peter says:

      OMG!! Is Amnesty International hellbent on on destroying what little credibility it has left? Progressives caught up in the righteous cause of beating back the horrors that are Trump or Ford would do well to pay more attention to what is happening in country after country in Europe. Not only are some very nasty movements in the ascendancy, traditional progressive and even moderate conservative parties are being decimated, to be replaced by who-knows-what. How many elections will it take before progressives understand that dismissing their adversaries as deplorables doesn’t make them disappears, even with the backing of Amnesty International.

      • The Doctor says:

        I belonged to Amnesty many years ago, back when they were closer to their original stated mission (reflected in their name), which was advocacy on behalf of political prisoners, prisoners of conscience etc. Then I started noticing that Amnesty had stuck me on mailing lists for organizations that the Amnesty poohbahs apparently thought I would automatically support because I was an Amnesty member, such as Greenpeace and avowedly left-leaning organizations. I found the presumptuousness in that to be astounding. It’s a classic case of mission creep.

        • Fred from BC says:

          I know how you feel.

          They asked me to join up a few years back. I told them that I used to donate to them back when they were making life difficult for the world’s dictators and tyrants, but they lost me when they hopped on the anti-American and anti-Israeli bandwagon (she didn’t like that too much and gave up immediately).

          I also remember when Greenpeace was about saving whales and not picketing and protesting every time a US warship comes into port. Their original founder even left the organization, didn’t he?

    • Doug Brown says:

      Maybe Bono, Sting and the Hot Nasties will play the Concert for Toronto

  5. Ryan H says:

    #7
    I’ve seen some comments to the opposite. The argument goes that it’s meabt to deal with exactly these sorts of situations. The fact that no one has forced such a situation to be delt with in a very long time should not be an argument for eliminating the tool.

    Don’t have the background to evaluate either way myself. But I have trouble seeing the courts rule in other situations that since no one has broken X law in a very long time, now that someone has it’s no longer enforceable.

  6. Jim R says:

    Good points. Nothing to argue with.

  7. Trevor says:

    As always, many people are missing the point about this. Trump-lite mouth breathers deliberately misleading? Shocking.

    Everyone knows that the province can do as it sees fit with Council. The issue, and the only issue of any merit, period, is that the Premier changed the rules of an election that was IN PROGRESS. Had this waited until 2022, they could’ve thrown lawsuits at the province, but none of them would’ve won.

    That’s the issue. That tens of thousands of words have been written otherwise is appalling. You do not mess with an election in progress. Why this is so hard for so many people to grasp is probably why Doug Ford won.

    • whyshouldIsellyourwheat says:

      The original law was passed in July. The writ periods for federal and provincial elections these days about 60 days. 90 days pre-election day is plenty of time for a campaign.

      The election hadn’t started. The nomination deadline was still nearly 50 days into the future. The election period begins after nominations close.

      • Trevor says:

        The nominations were set to close the day Bill 5 was announced. Nominations close during the election period federally and provincially.

        For all intents and purposes, the election period was on across all municipalities throughout the province. Any assertion otherwise is dishonest. The only reason we’re in this mess is that candidates had registered to run in good faith that there would be 47 wards, and had left their jobs and raised money on that presumption. I’d sue too if I were put into that situation.

    • James Smith says:

      You are 99% correct, but you lost me with the last sentence.

    • Peter says:

      So what you are saying is that although there are no constitutional protections for municipal government and a province has an unfettered right to change or even abolish municipal government structures, Charter prohibitions miraculously appear like a deus ex machina during a municipal election? Trevor, old swot, why don’t you just admit you’ll support anything that thwarts the guy no matter how illogical or incoherent? There, didn’t that feel better?

      • Jim says:

        Peter – You are being disingenuous to the extreme. The Charter Rights judged to have been violated are those of the voters and the candidates, not the municipalities.

  8. whyshouldIsellyourwheat says:

    Alan Blakeney, a diehard CCF’er and NDP’er, was the originator and strongest proponent of the notwithstanding clause, NOT a bunch of conservative premiers.

    When he was growing up, activist judges were hostile to socialist ideas, so he was wary of tyranny of the courts.

    The notwithstanding clause balances the tyranny’s. The tyranny of the majority vs. the tyranny of activist judges.

  9. whyshouldIsellyourwheat says:

    Arguably, history demonstrates that the British parliamentary system and common law are better guarantors of liberty and rights than courts and charters.

    In the long run, it is better to rely on the common sense of the common people, rather then hoping for benevolent elites in the courts.

    • James Smith says:

      Oh please tell that to the Windrush deportees! How lucky they must feel that they had the best possible system to deport them after living and working & tugging a forelock in GB for 30 & 40 years. At least those in Trumpsincation Camps (might) have a Constitution that may protect them, it may be trampled but they will have a better fighting chance.

  10. James Smith says:

    While I have some quibbles I you’re pretty much on the money except for #9 for these reasons:
    a) PC’s broke Toronto 25 years ago with the Mega City rather than improving it a la The Golden Report and continue the trend
    b) 15 years of the Grits attempting to fix this mess has still not solved things like social housing, transportation & other infrastructure issues (true for the entire province BTW) cutting the size of council will only mean unelected city staff will have to pick-up the slack
    c) If you use the size of Federal Ridings as a benchmark, as you suggest, by extension this means Milton would have a Mayor & a city council of ONE, Oakville and Burlington would each have a Mayor and a council of ONE Each and one to share between them
    d) Why use the size of Toronto’s federal constituencies? Why not PEI’s 4 MP’s for a province about as big as one of the newly proposed wards?
    e) Council could be smaller if community councils had teeth & real budgets and let them do the pot holes & stop sign issues and leave the big picture, planning & budget issues ( as is done in LA ) to the Mayor & council.
    f) A better option would be a “Metro Toronto” Model that would include the entire GTA

  11. Bill Malcolm says:

    You have heard of the three branches of government, I presume? Executive, legislative and judicial?

    Your point number one is hereby demolished. Having some two-bit know-nothing elected pol use the argument that elected nitwits should negate judicial branch interpretation of the constitution simply because the people “chose” them is rubbish.

    They can change the law by passing a new one, but even that has to pass the judicial test vis-a-vis a country’s constitution at any time it is challenged. This notwithstanding clause in our country is just a way for autocratic pols unable to take any criticism whatsoever of their lordly intellects to gerrymander citizens’ basic rights.

    Approval of the way Fraud has gone about things merely shows that people cannot even remember their Grade 10 Civics classes.

  12. Lou says:

    Well laid out. Yes to all. And I understand why Ford has thrown this out so soon. It appears that unions and the NDP plan to litigate everything. Government has a job. They will be judged in the next election. By the real judges.

  13. Matt says:

    Good God. Toronto council simply refuses to accept what is staring them in the face.

    At today’s emergency meeting the City bureaucrat responsible for running the election said they are quickly approaching the tmie where she won’t be able to guarantee a smooth and orderly election of either 25 or 47 wards and the city solicitor basically said they are out of legal options to stop the downsizing.

    Did council take that as a sign they are shit outta luck and resign themselves to the reality there will only be 25 wards?

    OF COURSE NOT you silly monkeys!

    The voted to keep fighting by asking the solicitor to explore any and all legal measures left no matter how small the chance of success and to ask Trudeau once again to intervene and use disallowence.

    Oddly the one councillor who said it’s time to drop this was former Liberal MP Jim Karagiannis.

  14. Mike Jeffries says:

    I disagree that this was a “mistake” because the effect will be positive as you say “city council will benefit from being made smaller”.
    Could this have been done differently? Would doing it differently have appeased the alt left? No, same law suit.
    But, I agree. “it will follow its authors around for a long, long time.” What will follow is that Ford had the balls to stick it to an activist judge and was cheered by the commoners!

  15. Jack McLeod says:

    A long time ago, in a world far, far away a member of the National Citizens Coalition wisely pointed out that a Charter of Rights imposed by the state will eventually be circumvented by the state to achieve it’s ends!

  16. Fred from BC says:

    Agree with everything Warren said, but still thinking that this was a very deliberate ‘overkill on Ford’s part:

    “This is how far *I’m* willing to go, how about you guys?”

    Yeah, he would have won it in court (eventually)…but this way sends a pretty clear message. Might be a mistake…might not.

    • Chris says:

      You may be right.
      I also see the Left’s handling of this issue as a huge over-kill. And it appears that the Left is going to assume a “resistance” stance against the government on every issue. When every issue becomes a threat to democracy and social order then no issue is a threat to democracy and social order.

  17. Cam says:

    You suggest, “Toronto city council should be smaller – it should have no more seats than the provincial and federal legislatures have to represent the same piece of real estate.”

    Buying this argument means for example that the riding represented by the Speaker of the Ontario Legislature should have only a single municipal representative. The Speaker’s riding includes the lower tier municipalities of Erin, Guelph/Eramosa, Centre Wellington, Puslinch, and Halton Hills. There are a total of 5 Mayors and 28 councillors in these 5 municipalities – this doesn’t include the municipal politicians in the upper tier County of Wellington and Regional Municipality of Halton. So the citizens of the Speaker’s riding have at least a minimum of 33 municipal representatives while you suggest the citizens within a provincial riding in the City of Toronto should only have one municipal representative plus the Mayor.

    Seems to me there is significant unfairness in how the citizen’s of Toronto are represented at the municipal level of government.

  18. Ronald O'Dowd says:

    Warren,

    OFF TOPIC: you know that the government is already in trouble when the PM and leader of my party starts recycling Martin speeches. Amateurish beyond belief.

    Exceedingly bad strategic advise from the denizens in the PMO. Nothing new.

  19. John W. says:

    Ontarians shouldn’t forget the incident at the corner of Spadina and Queen during the G7? summit.
    Or the Ipperwash occupation.
    The rights in the Toronto Council matter may seem vague and undefined and the judge’s decision flawed perhaps.
    But duly elected governments such as Ford’s government can take away real rights. The much maligned appointed judges and the courts are the only protection we have.
    Oh yea we can replace the government in fours years.
    That’s if you still have the vote. Check suppression US.

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