Column: notwithstanding this, notwithstanding that
Show of hands: how many of you expected the Ontario government to lose the constitutional challenge of its Bill 5, which aimed to reduce the size of Toronto’s city council?
No one?
Exactly. No one – no one who has been paying attention, at least – expected Doug Ford’s government to lose.
Municipalities are creatures of provincial legislatures, as we lawyers like to say. Provinces can do anything they want to municipalities – even legislate them out of existence.
But Ford lost. In a scathing decision, Justice Edward Belobaba concluded that the newly-minted Ontario government had violated the Charter of Rights and Freedoms with their bill. Specifically, the free speech rights of those seeking a seat on city council.
So, chagrined and chastened, Ford and his government decided to invoke section 33 of the Constitution to override Belobaba’s decision. The non abstante provision. The notwithstanding clause.
What does it all mean? Nothing. It means we are precisely at the point we all expected to be at: with a smaller city council here in the centre of the universe.
The only difference, in fact, is this: Doug Ford decided to avail himself of the notwithstanding clause, something the Constitution explicitly permits him to do.
Section 33 was not conjured up by a Québec separatist, either. It was mostly the invention of Alberta PC cabinet minister Merv Leitch. He suggested it to Alberta Premier Peter Lougheed, who in turn suggested it to Pierre Trudeau, Jean Chretien, Roy McMurtry and Roy Romanov.
None of them liked it. But they all went along with it. Tories, Grits, Dippers. Everyone was in on it.
So, now we are all where we expected to be: with a Toronto city council that is smaller – and which needed to smaller, in my opinion. The only difference is that a little-used part of the Constitution has been once again used. That’s the honest truth.
And, let’s be honest about something else, too. Not many folks can spell “notwithstanding clause,” let alone feign interest in it. To most normal folks, it is just another case of politicians being preoccupied only with themselves.
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.”
Whenever the Constitution would be raised by some politician seeking more power, Chretien would be dispatched to wrestle it back into its cage, like a lion tamer. Canadians loved him for it. (I sure did.)
So: Doug Ford’s mistake wasn’t in overturning a court decision everyone expected him to win. Doug Ford’s mistake wasn’t in pissing off some New Democrat political welfare cases, who (predictably) didn’t want to lose their council seats.
Doug Ford’s mistake wasn’t even invoking section 33, really. Not even that.
No, his mistake was in rousing the Canadian constitutional beast. The beast is now awake, and it is out of its cage, and it is going to start consuming everything in sight. As it always does.
Hands up, anybody who thinks it was a good idea to start talking about the Constitution again.
Didn’t think so.
Highly-scientific poll™️: secession not so popular, eh?
.@jen_keesmaat #topoli strategic errors poll:
— Warren Kinsella (@kinsellawarren) September 17, 2018
Chretien, McMurtry and Romanow break their silence
Jah Wobble is God
I have been playing punk bass since I was 15 years old. Early on, I figured out there were two ways to play bass.
You can play all the fucking fiddley-bits, like you are a (ew) guitarist. Or you can play like God and Dee Dee Ramone want you to play – with power and drive and as a rhythm instrument. The right way.
That is how Jah Wobble played. As God decreed it.
In 1979, the first time I heard his bass-playing on the first Public Image single, Public Image, it changed everything. I ditched the pick and started playing with my fingers. And, lo, it was better. Way.
To celebrate this – Jah Wobble coming to Toronto, and him following me on the Twitter machine – I give you this, the greatest bassist alive, the one Jah (God) Wobble.
Worship him, as I do.
(BONUS JAH FACTS: We played punk noise in a Calgary basement one afternoon with the pre-PIL guy behind the drums. He’s Canadian. Also: so genius was what Wobble does, here, fucking U2 stole it and made it their first single. Go listen.)
Star on Keesmaat: “over the top,” “seriously over the top,” doesn’t “move the city forward one iota”
This editorial slams those who have been slamming John Tory – specifically, Jennifer Keesmaat. Some quotable quotes:
- Keesmaat’s attacks on Tory “really come down to style far more than substance…Tory doesn’t rage, fists in the air, when he’s angry. That’s simply not his style. He’s a measured speaker…”
- “Keesmaat has defined herself differently…[to the point] that she tweeted out an over-the-top call for Toronto to secede from the province.”
- “None of [Keesmaat’s] bluster moved the city forward one iota vis-a-vis the province.”
- “[Her latest attack, on non-existent secret deals] is seriously over the top. It would be no surprise if Tory didn’t take Ford seriously when he mentioned cutting council in passing, and that certainly doesn’t amount to acquiescing to such a plan.”
The pith and substance of the s. 33 debate, in ten pithy points
- The courts should not be supreme. The people’s representatives should be.
- Most judges think they are smarter than all politicians. They may well be, but elected people should have the final say. Not unelected ones.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
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.”
“Why Don’t We Do It In The Road,” finally explained
Bill Davis: a Canadian political giant speaks
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.