, 09.17.2018 10:17 AM

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.


  1. Art says:

    You don’t like a court decision, you appeal to a higher court. That’s the proper course of action. Simple as that. This was a bonehead move by Ford and anyone who supports it is a bonehead.

  2. Al Hayward says:

    I agree in part, who cares what the size of Toronto’s council is, especially if you live outside of Toronto. Where I disagree is that he has acted like a petulant child who didn’t get his way and demonstrated that he will ignore court decisions that he disagrees with. Winning the appeal which most of the media believe will happen will unfortunately be too late to hide the fact that our premier things that he is above the law.

    • Matt says:

      He thinks he’s above the law by using the tools the law explicitly provides to him.

      Interesting take.

      And again, it has nothing to do with not liking the decision. Belobaba made significant errors in his ruling including ignoring three SCC decisions.

  3. doconnor says:

    The speaker ruled that the notwithstanding clause is different enough.

  4. doconnor says:

    In modern illiberal democracies, like Hungary and Turkey, people have thier “democratic rights” , but nationalism is promoted endlessly and the media and courts manipulated to ensure the dominance of the ruling party.

    That is the kind of thing that is possible through the notwithstanding clause.

  5. terence quinn says:

    I think the City has a case to ask the SC for a ruling on the use of S.33. it seems to meet does not fit the expectation for use of that clause and the SC may need to put down some markers for future abusers.

    • Ronald O'Dowd says:


      Remember the Quebec Reference and what percentage of the vote was required for secession to be legal? SCC cop-out: left to the political actors. This will be a cop-out redux.

  6. Westguy says:

    I still think the application of Charter rights to the issue was a hell of a stretch by the judge. I mean it’s been explained but it still doesn’t make sense. If the rights of citizens are being infringed because the ridings are being made larger, does that imply that all other ridings which serve a larger population than the ones in Toronto are unconstitutional?

  7. Jim R says:

    Ford is a moron. He may not be an effing moron like Trump, but he is nonetheless a moron.

    Having got that out of the way, and at the risk of repeating Kinsella’s points:
    – Everybody expected bill 5 to be green lit by the courts
    – The judge almost certainly erred in his ruling, and that understates it
    – Ford will almost certainly win on appeal
    – Ford has every legal right to shrink the size of Toronto council – timing notwithstanding
    – Ford had every legal right to invoke the NWC – the fact that it may have been a stupid move to make is a different matter altogether

    So, how about having a sense of proportion. Should Ford in the future use the NWC to, say, muzzle news organizations that are critical of him, well that would be a really good time to man the barricades. But using the NWC to implement a bill that, at most, has timing issues is not that time. So, accept the inevitable and wait for when the Premier does something remarkably wrong and/or stupid that has real consequences – it’s not likely to be a long wait.

  8. Chris says:

    Please explain.

  9. Gord Tulk says:

    I raise my hand – this confederation needs a revised constitution. Damage is being done to the ties that bind this country because of its massive deficiencies. Who knows how much longer it can remain together if it isn’t reformed.

  10. Fred from BC says:

    “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. ”

    Seems to me that Doug Ford hasn’t actually done any of that.

    His political enemies (the Liberals and NDP ) have. They are the ones making a big deal of this and bringing up the Constitution over and over, not Ford. If they don’t like it, they should just stop, right?

  11. Beth Higginson says:

    After Mike Harris forced amalgamation on Toronto in 1998, the Progressive Conservatives were shut out of the city for 20 years. Now Torontonians have given the party another chance, and it is again attacking their municipal government.


  12. Mike Jeffries says:

    I wholeheartedly disagree with this premise that the Constitution is a “beast”. If that is true than there IS something wrong with this country. But there is. And it’s not the Constitution!
    Thomas Jefferson, for example, wrote that if judges control the Constitution’s meaning, it would become “a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they may please.”
    The Constitution belongs to the people! When judges take what the people wrote and what the people meant and remake it in their own image, judges become the supreme law of the land.
    This recent ruling is an example of that. Thankfully we have the NWC to deal with exactly this. There is no need to seek even more judges to declare what is obvious: that the people democratically elected Mr. Ford to repair the province and reduction of city council(s) etc. needs to happen.

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