Before I begin, I want to say that I am not a professional academic. I am not a lawyer. I try to be informed, and this is my attempt to contribute to the public discussion. These are my observations and my feelings. Feel free to correct me on facts that I may have gotten wrong. But I stand by these beliefs.
The policy change seemed simple, albeit unfair to the residents of Toronto. A reduction of Toronto City Council from the proposed increase of 47 seats, to a decreased 25 seats. Putting aside how unfair this is to the residents of Toronto, and how it is a poorly thought out and bad policy, the change was legally valid as municipalities are “creatures” of the province.
Yet here we are in the midst of a constitutional crisis – all because Doug Ford and his Progressive Conservative party refuses to wait until after the election. He’s willing to use a powerful weapon – one that was only meant to be used in extraordinary circumstances – to what? Save $15-$25 million (depending on who you ask) – a drop in the water for municipal and provincial budgets? More likely, it’s a personal vendetta against the “liberal elite” and “downtown progressives” who fought against his and his brother’s personal agenda in City Council.
**But this is more than just that. This is more than just a mess. It’s a crisis. This is about the erosion of democratic institutions, traditions, and values. This is about an attack on our rights and freedoms, guaranteed under the Charter. This is about taking the first steps towards illiberal democracy – like we are seeing around the world – in Ontario, and perhaps Canada. **
Many will think I’m overreacting. “This is not the end of democracy!” “You’re being apocalyptic!” “Dude, chill.” And perhaps, I could be wrong and our institutions are strong enough to withstand Doug Ford and those like him. But the winds of change are blowing – the rhetoric is beginning to be alarming, the actions that are being taken are concerning, and the willingness to abuse our democratic process is frightening. This is the beginning of something dangerous, and the slide into illiberalism can be quick. We’ve seen this already in many countries in the past few years.
Let’s start first with Andrew Coyne’s fantastic summary about how we got to this mess (which I will condense here). A man with a disgraceful record somehow captured the leadership of the Ontario PC Party without a plurality of its members. The party and the leader, was elected to a majority government and Premier with 40% of the vote. With a majority, and with MPPs without integrity and who follow their leader blindly, the Premier can impose his will – basically by fiat. With no mandate, and without mentioning it in the election platform, the Premier unilaterally rewrites the election laws for a wholly different level of government – all because of a personal vendetta. And then, when the court rules against him by deeming it unconstitutional and violating certain freedoms guaranteed by the Charter, the Premier invokes Section 33 of the Charter – the Notwithstanding Clause – to override those rights. It makes the use of s.33 even more egregious that it was used for a personal issue. And then he proclaims that he’s willing to use that tactic again. All in the name of “the people”.
There’s a lot to unpack there: the flaws in our party system, the flaws in our electoral, First Past the Post system, the weakening of MPPs, the domination of the Premier’s office. Our flawed Parliamentary and electoral system has gotten us to this mess. Our parliamentary system simply does not have the checks and balances in place to keep a leader with autocratic tendencies at bay. And then on top of that, the architects of the Charter have left a tool that can be abused as a weapon by those with the worst tendencies.
What is most alarming is Doug Ford’s use of the Notwithstanding clause – and his willingness to use it again – his blatant disrespect for our judiciary, and the disregard for our rights and freedoms in the Charter. **In a more abstract and symbolic way, it is the disrespect for our democratic institutions, traditions and values – fair elections, independent judiciary, a free media, and even worse, the rule of law and fundamental freedoms that can be overridden by the Notwithstanding clause (such as freedom of expression, and the right to life, liberty, and security of the person). **
Doug Ford has stated that he intends to use the notwithstanding clause in the future. Do Canadians have any rights at all? Do you think that Canadian governments should AT ALL be constrained by courts? Doug Ford certainly thinks that his mandate means his government can overrule the courts (because “the people”).
Let’s take this a little further: How many more of these rights will be attacked? How many more Canadians will lose their rights and freedoms, all because the Premier says so? Do our rights and freedoms exist if a government is willing to override them, for the sake of their own political agenda?
Why do we need these rights and freedoms? Why are they so important? Because the foundation of a strong liberal democracy – one in which policies can be discussed freely and debated fairly and all people are treated fairly under the law – are these rights and freedoms. How can we debate policies – our positions, our disagreements – if our rights to freedom of expression, freedom of assembly (as in s.2) can be subject to the whim of one individual? How can we be sure that we will be treated fairly and equally under the law, without discrimination (as in s.15)?
Think of it this way: the Ford government has already scrapped the inclusive sex-ed curriculum that speaks to LGBTQ and transgender experiences, as well as climate change policies. These debates should not happen without proper process where all voices from different viewpoints should get the chance to comment. But we can’t have those conversations when the Ford government is willing to ram through legislation through procedural tricks, and then use the Notwithstanding clause if a court finds that bill to be unconstitutional.
There are policies that are blatantly racist, misogynistic, homophobic, and xenophobic that must be fought, but the curtailing of our rights and freedoms undermine our pursuit of justice. Our rights are what allow us to have debate and fight for justice in a fair society – an inclusive sex-ed curriculum, action on climate change, a living minimum wage, an end to illegal carding of PoC by police, among many others.
Policy differences are reconcilable. Encroaching on our rights and freedoms, no matter what your justification is, is irreconcilable.
Our only recourse in our Parliamentary system is to “vote the bastards out” in the next election. But in the mean time, there is no political accountability – and five years is a long time to wait for the Notwithstanding clause to expire. How do you keep a government who uses s.33 accountable when elections are only held every four years? In an ideal situation, MPPs – particularly backbench MPPs – would stand up against unfair legislation and vote against the government. They would show backbone and democratic integrity. But our party system demands complete blind loyalty, or risk suffering the consequences of losing support from the party for your re-election campaign.
Just look at the erosion of democratic norms around the world and the rise of illiberal democracies around the world: Putin’s Russia, Erdogan’s Turkey, Orban’s Hungary, Duda and Morawiecki’s Poland, and Duterte’s Philippines – a country close to my heart. You see the spectres of authoritarianism in Trump’s United States, with disregard for the rule of law, the contempt for the judiciary (even while stacking courts with conservative judges), the attack on the freedom of the press (“fake news”), and threatening to “lock up” his political opponents.
Sure, certain democratic rights are exempt from the Notwithstanding clause, so some of the most egregious things that happen in these countries will likely not happen here. But the erosion of democratic values is something to be concerned about. The rhetoric in Ontario is scaringly similar – all of these leaders claiming to represent “the people”. The Ford government has already shown that it believes the courts are biased – and it’s scary to believe that it’s a quick mental jump to “The courts are biased and we need to appoint conservative judges.” The Ford government has regularly blasted the media as “fake news” and has set up its own “news outlet” (Ontario News Now) as a propaganda mouthpiece for the government.
It is a bastardization of democracy – a vision of democracy as majority rule (elected under doubtful pretenses), and a disregard for the protection of minorities. All of that can happen here in Ontario, and this is just the first step. Because of all of the flaws in our Parliamentary system, and without checks and balances to safeguard our democracy, it could be easy for leaders with authoritarian governments to erode our democratic institutions. Democracy is more fragile in Canada than we think.
**Here’s what I believe: we have certain natural and inalienable rights that come before anything else. We have democratic rights that we have constructed for ourselves as a society that seeks to be free, fair and just. But rights and freedoms are only strong if we fight for them and we affirm them constantly and vigorously, every day. A society can only have effective rights if it truly believes it does, and always acts on it. If the rights of others are attacked, then the rights of all are attacked. Whose rights will the government go after next? **
**We cannot compromise on these rights, no matter what excuse or justification. We cannot give up a single inch. If we want a better and more just society, we must protect these rights with everything we’ve got. I choose to affirm these rights and freedoms. I will not compromise. **
The policy of reducing seats on Toronto City Council may seem simple, but the implications that we have learnt about Doug Ford – his actions and his rhetoric – are alarming. And they are only the beginning as he proves his willingness to use the Notwithstanding clause – and override our rights and freedoms – in the future. The erosion of our democratic institutions, traditions, values, and norms – and the slide to an illiberal democracy – can happen here, as it has throughout the world. Democracy in Canada is more fragile than it seems.
These are dangerous signs. And we must fight back and continue to affirm our rights and freedoms, so that we can continue to pursue a better and more just society.