Some news out of Ontario. A court blocked a move by Ontario Premier Doug Ford to reduce Toronto city council from 47 to 25 members. Ford has responded by saying he will invoke the notwithstanding clause of the constitution to overrule the court ruling and proceed. This will be the first time Ontario has invoked notwithstanding since the constitution was enacted in 1982.
It's an interesting case to invoke notwithstanding on. The intent had always been that notwithstanding would be used very sparingly, only in egregious or important public interest cases. For example suppose some judge ruled that incarceration was unconstitutional. That's the type of case where notwithstanding would be called for. I'm not against a more active use of notwithstanding myself. On this site I've advocated it for some cases in the public interest and to maintain public confidence in government
Sally Campbell
Abdoul Abdi deportation
also in the Omar Khadr case the correct move was to appeal appeal appeal any adverse court decisions in the lawsuit and then finally if necessary invoke notwithstanding. in no case does Canada pay off those who fight on the enemy side in a war, or participate in terrorism. I like to believe that Stephen Harper if he had won; would have taken that tack and in no circumstance would the taxpayers of Canada pay off Khadr for what he participated in. Alas the people elected Justin Trudeau who saw things differently.
On the face of it, it won't make an ounce of difference anywhere if Toronto city council has 47 or 25 seats. So on its own it's not the type of case that calls for notwithstanding. So what's up? I believe there is something else there, something important that needs to be discussed.
What I believe Ford is doing, is reasserting the jurisdiction of the elected assembly over the activist courts. I don't believe it's about the 47/25 thing on its own. This is the first time activists tried to use lawfare to block and frustrate a legitimate act by the Premier. So Ford, early in his term, is sending a very clear message to the activist judges and their allies. Those seeking to use the courts to frustrate and overrule the elected legislature and impose their own agenda.
Ford saw what happened with Trump and the courts blocking the immigration ban. He saw what happened with judges and the Trans Mountain pipeline. In a larger sense Doug Ford is right. For a long time now, decades really, there has been gradually increasing aggressiveness from the courts. Some of the cases and arguments in recent years demonstrate this. Appeals and arguments to "right to enjoyment of life", "fairness", and other dubious claims not in the constitution or any statute. these aren't rights, it's just "feels good" law, judges overstepping their authority to "make things right" for favoured groups.
in the past a judge might hear a case, express sympathy for the appellant, then note that the court does not have jurisdiction, or it is up to the legislature to repeal or modify an unfair or onerous law. it isn't for judges to create new rights where convenient, or strike down laws or ministerial decisions they personally disagree with. judges exercised restraint and caution, and in general left it to the legislature to make things right in the law, rather than imposing their own concept of law. since judges generally did the right thing on their own, there was no need to use or threaten to use notwithstanding.
somewhere over the years this changed. unsurprising really. Dalhousie University has a law school. Plenty of students who took courses or majored in Communications at Laurier went on to law school. Inevitably at this point, 20-25-30 years on now, these same students have taken their place and world view into the judiciary. Doug Ford is taking an important step in the legitimate use of notwithstanding to make an important course correction against lawfare and judicial activism.
