Wrong, wrong, wrong, but …

Andrew Coyne, a columnist with whom I often agree, is quite and dreadfully wrong in most of his diatribe against Ontario Premier Doug Ford’s use of the Canadian Constitution’s Notwithstanding Clause (§33) to assert his political will over Toronto City Council.

Yes, I agree that Doug Ford secured the leadership of his Party with less than overwhelming support in a vote that was, in my opinion, flawed in both design and conduct. But if you’ll recall, in 2006, Stéphane Dion secured the leadership of the Liberal Party of Canada with a very narrow victory that also featured hand-picked delegates and that almost (1st and 2nd ballots) threatened to upend the Liberal convention of alternating between French and English leaders. No one complained so much then.

Then Mr Coyne complains that “He wins a “majority” in the ensuing provincial election with 40 per cent of the vote …” So what? Justin Trudeau won the last federal election with less than 40% of the popular vote and I don’t think anyone thinks that he is illegitimate for just that.

The big complaint is that Premier Ford has decided to use the Notwithstanding Clause, especially, when, as Mr Coyne suggests, an appeal for a stay of what many consider to be a deeply flawed legal decision, has succeeded. But Premier Ford is not the first to use §33:

  • In June 1982, the Quebec provincial legislature (then controlled by the Parti Québécois) legislated the Act Respecting the Constitution Act, 1982, in which it invoked a blanket Notwithstanding declaration. The effect of this was to make all past and future provincial legislation (up to 1985) immune from judicial review under the Charter. The declaration, however, was allowed to elapse following the election of the more federalist Liberal Party of Quebec in 1985 … [and] … Since 1985, the Quebec legislature has applied the Notwithstanding clause much more rarely. The most notable usage came in 1988, when the province sought to protect its sign laws. At the time, the provincial government had passed laws requiring all commercial signs in the province (both inside and outside of establishments) to be in French only. The intent of the law was to protect the use of the French language in commercial activities … [but] … Several individuals and groups challenged the sign laws based on the grounds the legislation violated their rights to freedom of expression under Charter of RightsSection 2(b) of the Charter. The Supreme Court of Canada agreed, and in two 1988 decisions (Ford v. QuebecDevine v. Quebec), ruled that an outright prohibition of the use of languages other than French was an unreasonable limitation on the freedom of expression … [so] … The Quebec government responded by amending the original sign-law to permit the usage of other languages on signs inside of commercial establishments, but continued to prohibit the use of any language other than French on exterior signs. Additionally, the Quebec provincial legislature invoked the Notwithstanding clause to protect the amended legislation from any further judicial review under the Charter. When the five-year time limit for the Notwithstanding declaration expired, it was not extended by the Quebec legislature. Instead it passed a new law, one that was more in keeping with the Charter and its principles, allowing signs in both languages, but only as long as French was the predominant language displayed;”
  • In 1986, the Saskatchewan legislature introduced back-to-work legislation to end a strike by public service employees. The government introduced the legislation based on the grounds it needed to protect the general public from the harm associated with the disruption of government service caused by the strike. The legislature went a step further by making a Notwithstanding declaration to protect the back-to-work law from any Charter scrutiny by the judiciary (in particular, to protect the legislation from being found unconstitutional on the grounds it violated a possible right to strike under the Charter). The courts later ruled, however, in the case Alberta Labour Reference, that the Charter did not include the right to strike. As a result of the court decision in that case, the Notwithstanding declaration by the Saskatchewan government turned out to be unnecessary;” and
  • In March 2000, the Albertan legislature passed Bill 202 – the Marriage Amendment Act. This legislation re-asserted the definition of marriage as a union between a man and a woman, excluding gay couples. The Act also included a Notwithstanding declaration, to protect this legislated definition of marriage from judicial review under the Charter. The Alberta legislature made the declaration in response to the possibility that the Supreme Court of Canada would rule that the exclusion of gay couples from the definition of marriage violated the right to equality under Section 15 of the Charter. This marked the first time the Notwithstanding clause had been used to protect “traditional” moral values. The declaration, however, turned out to be mainly symbolic, as the Supreme Court of Canada later ruled that the ability to define the term marriage rested solely with the federal government, and was outside provincial jurisdiction. A Notwithstanding declaration cannot be made for policy areas that are outside a government’s jurisdiction.

So, in one case (Alberta) the Notwithstanding Clause was inappropriate (outside of the government’s jurisdiction) and in another (Saskatchewan) it was unnecessary (as it is Ontario, now that a judge has granted the requested stay) while in Quebec the courts, including the Supreme Court, and the country, including both Conservative and Liberal federal governments simply acquiesced to the trampling of minority language rights because … well because it’s Québec, I suppose, and deux nations and all that nonsense.

My Coyne is quite right when he says that “the problem is not Ford, so much as the powers he has been given. It’s all very well for the people responsible for its inclusion, the surviving participants in the 1981 constitutional round, to protest that this was not what they had in mind: that the clause was meant to be used only in “exceptional situations,” as a “last resort.” But if they did not intend it to be used in such a loose fashion, they should not have drafted it so loosely; if they did not anticipate a Ford would one day come along, they should have. Leave a loaded gun lying around, somebody is bound to pick it up and use it.

Andrew Coyne concludes by saying that “What we have here is a case of constitutional cognitive dissonance. The whole premise of the Charter was that governments cannot be trusted with power: left unchecked, they will abuse it. And the whole premise of the notwithstanding clause was that they can be. It was not just likely that trust would one day be abused. It was all but inevitable.” That’s arrant nonsense! The whole premise of the Charter was that 800 years of constitutional convention had to Sterling_Lyon_(Manitoba)be set aside in order to solve a very transitory, 20th century, local problem of linguistic sovereignty. Some people, led by http_o.aolcdn.comhssstoragemidasb70e485348f1fb1de7e42889dcccddb1205897339trudeauPremier Sterling Lyon on Manitoba, a staunch proponent of the supremacy of the common law and of property rights, saw that Pierre Trudeau was trying to upend the very foundations of our Constitution and replace them with a ill-conceived bit of written text, and they, following Lyon’s lead, insisted on the Notwithstanding Clause to maintain the 800+ year old unwritten Constitutional convention which says that parliaments, not monarchs and not courts are supreme. What Pierre Trudeau wanted to do was to make his Charter supreme, even over parliament and the fundamental rights of the people … he, eventually, agreed that our fundamental rights (§2), our equality rights(§7-14) and our legal rights (§15) could be subjected to the Notwithstanding Clause, but not his precious language rights (§16-23) which were, in my opinion, the rock upon which he built his somewhat Cartesian ‘church.’

I would argue that Andrew Coyne, like Pierre Trudeau, is uncomfortable with the unwritten Constitution which underpins our 1867 and 1982 provisions. I guess I can understand that; we live next to and are informed by the political and constitutional culture of the United States of America and we like the idea that something tangible is “on top.” It’s hard to grapple with the notion that a remote sovereign is “in charge” of everything, of parliament, of the courts of the government, but is, at the same time, subordinate to the will of the people as expressed by parliament and interpreted (constrained) by the courts. Surely it must be possible to write that down in a clear, simple form, based on reasoned analysis and methodological skepticism … mustn’t it? No, as I have said before, both the Americans and Canadian failed to make “timeless,” universal documents that are, in any way, equal (much less superior) to the unwritten British Constitution.

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