The kerfuffle surrounding the recent announcement of Doug Ford’s intention to invoke the notwithstanding clause of the Canadian Charter of Rights and Freedoms is an interesting one.  Usually when the Right and Left square off on some issue of the day, it is the product of one of those classic conflicts of competing sacrosanct principles; usually freedom of speech versus the equality rights of one of the many groups recognized and protected by the Charter.  But in this case, each side is basing their support or opposition to this government action as a defence of the same fundamental right, that of democracy itself.

Pointing to the recent and convincing electoral triumph of the Conservatives under his leadership, Mr. Ford is outraged by the action of the Ontario Superior Court to enjoin the legislation that would reduce the number of Toronto City Council seats from 47 to 25.  “Do we not live in a democracy?”, he blusters.  Meanwhile, opponents of the legislation salute the injunction that was issued largely based on the lack of consultation with any and all interested parties before imposing the new municipal governance structure.  “The judge has upheld the fundamental principle of democracy!”, they crow.

Truth is, Ontarians don’t live in a democracy.  That is not a problem; no nation in the world is a true democracy, because no one would want to live in a pure democracy.  We live in a Constitutional Democracy, meaning that all citizens implicitly agree to submit to the will of the majority on the condition that the majority be obligated to honour certain fundamental guarantees with respect to the rights of the minority.  That is what our Constitution, including the Charter of Rights and Freedoms, does.  Doug Ford’s impressive majority doesn’t override the right of the courts to rule on whether legislation properly honours the guarantees provided to every minority as part of their agreement to otherwise accept majority rule.

But we also live in a Representative Democracy, which means that all citizens, even citizens with a significant interest in a particular piece of legislation, do not have an individual right to be heard on that issue unless such an obligation to consult has been legislatively or regulatorily hardwired into an administrative process (a la the Northern Gateway Pipeline approval process).  No such right exists in the context of the exercise of the provincial government’s right to legislate with respect to the composition and structure of municipal governments in Ontario.

So here we are in a dispute between those who believe that we live in an unfettered Representative Democracy and those who believe that we live in a Constitutional Democracy that effectively obliges the government of the day to consult on all matters within its jurisdiction to legislate.  The courts have found in favour of the latter position.  There are certainly grounds for appeal of that finding, and for precedent reasons the Ford government would be wise to exercise its right of appeal.

But that is only part of what they intend to do.  They are also going to invoke the fail safe created in the 1982 Constitutional repatriation exercise that was required to get all of the provinces onside that allows any government to impose legislation notwithstanding a finding that it is not in accordance with the Charter of Rights and Freedoms.  While the provision is silent on when it can be invoked, it has always presumed that it would only be used in circumstances in which the urgency of the legislation justifies the temporary abridgement of guaranteed rights.  I say temporary, because such overrides are only effective for five years form the date on which the government has exercised that right.  Of course, it is also always presumed that the invocation of such an undemocratic power would be an act for which it could and would be held accountable in the next election.

The Ford Government is invoking the notwithstanding clause because the municipal election that they are looking to transform by the reduction of available seats is just over a month away.  Any successful appeal would be irrelevant to the formation of the Toronto’s next City Council, and thus could only affect the next municipal election that would occur only after the end of the term of the current provincial government.  This certainly sounds politically urgent, but is resolution of the actual public policy issue really that urgent?  The savings to even Toronto residents of a reduced Council is negligible in the context of the overall municipal budget.  The effectiveness issues seem to involve a trade off between the efficiency of the government process versus the likely decreased effectiveness of a smaller number of councillors’ offices at addressing the many specific city service concerns of residents.  Clearly a Council of one would deliver the most efficient legislative process and a council of 100 would provide more effective management of individual ratepayer concerns, but what the optimal number to balance these two requirements is a tricky one that might persuade a responsible government to consult broadly, not because they are required to by law, but because it is prudent.

The exercise of the notwithstanding clause is always problematic, but it is a provision that was negotiated in the Constitution.  One would expect that it would be invoked in only the most urgent and demonstrably democratically justifiable circumstances.  Indeed, the only three uses of the clause to date have either been of demonstrable urgency (Saskatchewan’s Public Service back to work legislation in 1986 and funding of non-Catholic students in Saskatchewan Separate Schools in May of this year) or a fundamental public policy position that had been expressly promised in an election campaign (Quebec’s 1988 introduction of French language signage laws). Even if the Ford government had campaigned on the specifics of the proposed legislation in the spring and the court had invoked the Charter in the fall to subvert the will of the government, the urgency of this matter would still not seem to justify the invocation of the notwithstanding clause.  But of course, that is not the case here; the size of the Toronto City Council was never mentioned in the recent provincial election.

Now, if the court’s overrule any legislation passed to effect the well publicized “buck-a beer” promise…

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