Maybe all those comparisons to Trump weren’t so facile, after all.
Given the state of general knowledge and civic awareness in this country, I’m betting that a lot of Ontarians, steeped as they are in the way Americans do things, have no idea that their Charter of Rights is full of holes, and was quite deliberately designed to be. Well, maybe they’re vaguely aware of it now, since Fearless Leader Premier Doug Ford has decided to exercise his thoroughly lawful authority to bulldoze over a judicial finding that his legislation violates the rights of Toronto’s citizens to free expression; but I doubt that most people, if asked a few days ago, would have known that a politician could decide to run roughshod over their Charter rights without offending the Charter itself. It does seem a little odd, doesn’t it?
What sort of constitutional guarantee of fundamental rights and freedoms has a “notwithstanding” clause?
Why, a Canadian one, silly!
You could be forgiven for thinking that the constitutional inclusion of a legislative override of Charter rights was something done to placate Québec, and it’s true, Québec has been the most avid user of the “notwithstanding” power, mainly in defence of its language laws (actually, as a gesture of protest, the Québec legislature tacked a “notwithstanding” clause on to every single bill it passed for a few years, early on). However, when the Constitution was patriated under Pierre Trudeau, Québec, then governed by the separatist Parti Québécois under René Lévesque, was not part of the negotiations (it’s a clammy tale with plenty of blame to ’round). It was Alberta and Saskatchewan, and in particular Alberta Premier Peter Lougheed, who forced the issue, and gave us the Charter as we know and only sort of love it today.
This was understandable, in context. First, to anybody brought up in the British tradition of Parliamentary Supremacy, the idea of a court invalidating laws passed by a democratically elected legislature was, well, so American. Besides, look what it all led to – Miranda, Escobedo, Brown vs. Board of Education, Roe v. Wade, egads, those liberal justices down there were going crazy. What would be next? Polygamy? Bestiality? Cats laying down with dogs? Gay marriage? Land o’ Goshen! No sir, you wanted to tack a liberal bill of rights on to the patriated British North America Act, it better come with an override, and other safety measures to boot – hence, not only the “notwithstanding” provision in Section 33, but Section 1 itself, which actually sanctions breaches of Charter rights, if, you know, it’s overall a good thing: the Charter expressly “guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” (emphasis added, for, well, emphasis). There was also this little gem in Section 24(2), designed to mitigate the possible emulation by Canadian courts of the American “fruit of the poisoned tree” doctrine, under which criminal evidence gathered illegally by the state, and any further evidence derived from it, can’t be used in court:
(2) Where…a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
I mean, geez, maybe we can make a straight-faced argument that the evidence obtained illegally is so very probative that this time, it’s no real black mark on the justice system to let it in anyway, right? C’mon, just this once? We had to beat it out of him, your honour, I mean it took hours, I wore out two Toronto phone books, whaling away on the bastard until my frigging arms got tired, but just look what we got, eh!
This was, to be sure, an entirely Canadian way of compromising, and generally popular at the time. It still is, probably. This was a nation, after all, that was wildly supportive of the invocation of the War Measures Act – martial law – during the FLQ crisis in 1970 (ironically, by the same philosopher king who then promoted the Charter), and one which barely blinked when the Ontario Government set up a chain-linked gulag on the Toronto lakefront and filled it mostly with innocent activists and peaceful protestors during the largest mass arrest in Canadian history, when the G-20 came to Hogtown in 2010, having, in effect, declared martial law again. You should look up the videos on YouTube. The one with the riot cops putting a beat-down on the helpless guy with prosthetic legs is priceless.
To their credit, the courts have been very careful in circumscribing when the various “outs” in the Charter can be used. Still, the question remains: what sort of declaration of the fundamental, inviolable rights of citizens includes the concept “unless, of course…“? Moreover, there’s nothing a judiciary can do about the ultimate work-around in Section 33 (or at least that seems to be the consensus expert constitutional opinion). It sits there buried in the text like a rattlesnake waiting to strike, and I suppose we should be grateful that for most of the Charter’s history governments have shied away from using it, figuring, one can only suspect, that it’s a last resort to be pulled out of the tool box only when something particularly dire and portentous seems to be at stake, something with respect to which the dictates of the Charter might seem radically out of step with prevailing norms or the popular will.
The Federal Government has never used it. Outside Québec, Saskatchewan invoked it to insulate a bill legislating striking provincial employees back to work, but it turned out that the Supreme Court thought the law wasn’t offensive to the Charter anyway. Alberta tried to use it to ban gay marriage, but the Supremes ruled that you could forget the Charter argument, because marriage is under Federal jurisdiction in the first place – read the Constitution, Lawyerpotomus. I seem to recall Saskatchewan using it again with respect to something involving government subsidies for Catholic schools, or the like, but that’s basically it. All in all, it’s a rather radical power that most governments are highly reluctant to wield. It’s Big Magic. You don’t just pop the lid on Pandora’s Box every time you’re ticked at the ordinary operation of the Constitution, and its many constraints.
Unless you do. So here we are now, in Ontario, with a witless bobble-head of a Premier who is, I’m sure, quite popular, and who’s already beset by lawsuits on all sides as he bulls his way through the china shop of public policy. Having been told by a court that it violates the Charter – the right to free expression, specifically – to cut the size of Toronto City Council in half right in the middle of an election, he’s going to pull the trigger on the Notwithstanding Clause to ram it through. No doubt, all the pin heads in Ford Nation are going “fuckin’ ay bubba” and “stick it to ’em Douggie!“, because who likes politicians, and who thinks that fewer of them is a bad thing? (Answer: they will, just as soon as their snow doesn’t get ploughed one day, or somebody forgets to pick up their garbage, and they can’t get through to their beleaguered, overloaded Councillor). I can practically hear the chants of “Go, Douggie, Go!!” from here. This isn’t a big political risk our Doug is taking. Actually, he’s playing to his base. Never forget, there’s always a large constituency in this country for a government that wants get Medieval on somebody’s ass, and Doug wasn’t elected so he could play nicey-nice with all those insufferable elite multicultural feminist/gay/socialist frapuccino-quaffers in goddam Toronto.
I know, I know. Nobody cares, or they all love it, whatever. Really, though? The Notwithstanding Clause? Just to stick it to Toronto on an issue like the size of City Council? It’s kind of early in the game to be choosing the nuclear option, and that’s pretty small potatoes over which to do it, isn’t it, Chumley? He’s not done yet, either, so he tells us. He’ll do it again, and again, if needs be, all so as to promote – get this – democracy:
“This is about preserving the will of the people, this is about preserving democracy,” Ford said, citing his Progressive Conservatives’ victory in the spring election.
Ah yes. So long as you’re elected, everything you do is The Will of the People, even if the relevant issue wasn’t even discussed during the election, and woe to anybody feebly waving the banner for quaint notions like the Rule of Law. In Ford Nation, you appoint a dictatorship and call it democratic. This may as well be The Popular Peoples’ Democratic Autocracy of Fordlandia, so far as Douggie’s concerned.
I know what you’re thinking, you’re thinking “Graeme, you unprincipled hypocrite, your high dudgeon over Ford’s hi-jinks stands in stark contrast to your unspoken yet fervent desire that the U.S. Constitution had a similar notwithstanding provision, now that Mitch McConnell and his Republican henchmen are about to finish off what amounts to a coup by stacking the judiciary at all levels with conservative idealogues who’ll destroy American democracy for decades to come, with nobody to stop them. That about right? Graeme?”.
O.K., yes, fine, you got me.
It turns out there’s no foolproof way to design a government.
Cabin in the mountains, anyone?
Update: the Court of Appeal issued a stay on the lower court’s Charter ruling, allowing Douggie to pass his legislation without pulling the trigger on the notwithstanding power. 25 city councillors it is, then.