Posted on 11 September 2018

Ontario Premier Doug Ford:

“What’s extraordinary is a democratically elected government trying to be shut down by the courts… I was elected. The judge was appointed.”

This shortly before invoking the notwithstanding clause in order to go ahead with shrinking the size of Toronto’s city council despite a court ruling that doing so is unconstitutional (if none of this makes sense to you, a good overview is here.

Putting aside the specifics of this case — whether council is too big or too small, whether the provincial government should be rushing to reduce it, whether the court ruling was stretching the definition of freedom of expression and assembly — there is something broader to say about Ford’s comments on whether the courts should be able to check elected governments.

Carissima Mathen:

“The Premier seems to think his mandate entitles him to do whatever he pleases and any opposition is illegitimate. He suggests there is something wrong with judges overriding democratic decisions – even when those decisions are found to violate the Constitution. To be sure, many governments have expressed frustration with court decisions. But it is virtually unheard of for a Canadian political leader to appear to question the idea that we are a nation of laws.”

Susan Delacourt:

“The premier is, in fact, gambling that Ontario voters see Charter rights in the same way they view an abundance of city councillors — as excess, expensive baggage on an efficient ship of state.

“Or put it another way: if this move gets a simple shrug from Ontario citizens, public opinion is no longer an effective check on politicians who find the Charter of Rights an obstacle to governance. So who is going to be the next premier to find the Charter inconvenient?”

Of course, use of the notwithstanding clause is perfectly legal– after all, it’s part of the constitution, too. On that, here’s Andrew Coyne:

“It is, to be sure, part of the charter, as much as the rights whose override it permits — inserted at the last minute, as part of the grubby horse-trading that is otherwise excoriated as having ‘left Quebec out’ — but that does not oblige us to accept that it should be. For its message is essentially to negate the rest.

“The rights so gaudily guaranteed in the charter, it says, are not in fact guaranteed at all. They are not permanent and universal, but temporary and contingent — not even rights, really, so much as permissions. And what the government gives it can take away.”

One thing that really stood out for me while earning my political science degree is just how many of the checks and balances of democracy are actually just past lawmakers crossing their fingers and hoping future politicians respect unenforceable norms.

Or, as Asher Mercer put it on Twiter:

“This era of western politics will be remembered for the widespread realization that many many things we thought were inviolable rules were just niceties from which we figured no one would ever deviate.”

Filed under: Canada, daily