The imposition of the notwithstanding clause of the Canadian Constitution by Ontario Premier Doug Ford is the best thing that has occurred in Canadian politics since the defeat of the Parti Québécois in the provincial election in Quebec four years ago. The significance of the decision to vacate a judicial decision to prevent the premier’s shrinkage of the Toronto city council from 47 to 25 councillors vastly transcends the technical issue: 25 councillors is quite enough.
It is with great reluctance that I take issue with Justice Edward Belobaba of the Ontario Superior Court (who once sustained me very generously in a libel case and his judgment was almost textually replicated by the Court of Appeal and the Supreme Court of Canada). He is a fine and learned judge but I do not agree that a modest reduction of the number of city councillors by the provincial government, which has constitutional authority to organize municipal governments within each province, infringes, as the justice found, freedom of expression of voters or councillors. Twenty-five people can express themselves and the will of those they represent just as well, and often more coherently, and certainly more economically, than can 47 councillors. The premier has satisfied the concerns of many, including me, that there be some city-wide councillors who can properly determine metropolitan subjects, especially transit matters. And the justice might be more careful about mind-reading and imputing motives (“pique”) to the premier.
Twenty-five people can express themselves and the will of those they represent just as well, and often more coherently, and certainly more economically, than can 47 councillors
The country isn’t really concerned about the issue. The real importance of the premier’s invocation of Section 33, invalidating the Superior Court decision, and his promise not to be hesitant to invoke that section again, is the threat it poses to the ability of the bench to ignore the intention of legislators and interpret every statute as they choose in light of current sociology and legal convention. This leads to eccentric decisions, such as the one overturned in this case. A better-known example is the Supreme Court decision two years ago that the right of assembly included the right of Saskatchewan public service employees in designated essential services to strike. This was a nonsensical conclusion, though it was written by an outstanding person and friend of 40 years, Justice Rosalie Abella. It is also dismaying to see some of the collaborators of Pierre Trudeau expressing disconcertion at this move by the premier of Ontario. I used to speak to the then-prime minister in the early Eighties fairly regularly at the time he patriated the amending formula and gained acceptance for the Charter of Rights and Freedoms. The idea was presented by Trudeau as justice minister in response to the comprehensive outline of proposals by Quebec premier Daniel Johnson, Sr., for a reallocation of powers between the federal and provincial governments.
It was a brilliant appeal to the French tendency to idealize rights in themselves as an abstract premise and then devolve them through to the whole population with a de-emphasized concern for which level of government possesses the administering jurisdiction. Any form of codification is an importation from the traditional continental system of enunciating the law in detail, and a departure from the common Law tradition of the gradual evolution by a spontaneous blending of the text of law and accumulating jurisprudence. It seriously confused the Quebec separatists as an affirmation of Canadian sovereignty and a powerful statement of human rights that they could not claim they needed to secede from Canada to assure in Quebec. But the last thing Trudeau intended was the orgy of bizarre judicial findings in favour of the most militant native rights advocates, (he started out to abolish what was then called the Department of Indian Affairs). When he banished the state “from the bedrooms of the nation,” he did not intend his later Charter-waving courts to champion the proliferation of what constitutes a gender.
When Pierre Trudeau banished the state 'from the bedrooms of the nation,' he did not intend his later Charter-waving courts to champion the proliferation of what constitutes a gender
We have the courts to thank, almost untethered to what the law states, for the development of the theory that almost accuses the ancestors of the Europeans in this country of effectively invading and seizing the nations of the native people virtually as Hitler and Stalin invaded and occupied Poland in 1939 and that implies that we have an uncertain right to be here. The courts have also started to depart from the once unquestioned and demonstrable view that there are two sexes in the human species (among others), though a variety of sexual orientations. I dislike parting company with my old friend Tom Axworthy, once a close adviser to prime minister Pierre Trudeau, but I believe that Pierre Trudeau would have been very distressed by the tendency of our judges today to turn the law into an incoherent patchwork of the hobby horses of individual judges while reducing Parliament and the legislatures to inconsequential talking shops. Premier Ford and the attorney general of Ontario, Caroline Mulroney Lapham, deserve the thanks of the whole country. Doug Ford was right to assert the rights of elected over appointed and tenured officials, and he has taken the first vital step toward the restoration of the high court of Parliament.
The argument that there is any place in this Toronto council question for the intervention of the federal government, as some commentators have suggested, is unutterable nonsense. The power of disavowal rests with the federal government, unused for 80 years. Recourse to such a draconian measure now would be unheard of, other than in a stark onslaught on the federal government, which has no direct authority over municipal affairs. The federal government is now in the absurd position, entirely by its own maladroitness, of needing to reverse its Gadarene stampede to shower deferences and preferments on the militant natives who liken John A. Macdonald to Hitler. The present Trudeau regime will have to resuscitate the nationalized Kinder Morgan stillborn pipeline from courts prostrating themselves (and all of us) before the militant natives, or it will go back to the people next year with its $4.5-billion investment in a stalled pipeline hanging around its neck like a toilet seat. And if it persists in its insane carbon tax, it will have a bruising dust-up with several provinces, and take the electoral heat for an excessive spur to the price of gasoline and fuel oil in the spurious name of saving the planet. (Canada’s carbon footprint is barely 1.5 per cent of the world’s and it’s not clear that carbon is inimical to the environment anyway.)