When I first heard about Ontario Premier Doug Ford‘s announcement that he would use the notwithstanding clause to override a decision on the constitutionality of shrinking Toronto council, I was somewhat concerned. This option was always supposed to be the last resort.
But after having read many reactions from various sources I now realize that this represents the larger issue of judicial activism in Canada which has been a huge problem for years. Add to that the fact that the decision itself required a whole lot of creativity in order to tie it in with the Charter – and so it would likely lose in an appeal – or at least be seriously challenged.
Brian Lilley highlights the tenuous legal logic here:
He [Justice Belobaba] also claims voters’ rights to freedom of expression were violated because the changes would make the new wards too large with too many people.
That is not only a stretch, it is is an attempt to apply a part of the Charter that does not apply to municipal voting.
And Kelly McParland explains the problem of urgency in the National Post:
Judges, of course, aren’t elected. Politicians are. Both are human and make mistakes — sometimes dumb ones. Politicians can be replaced by voters; judges can’t. The activist community is well aware of this fact, and has learned that using the courts to foil government initiatives is far more effective than arguing with politicians themselves. Delay is a powerful political tool; courts are an excellent means of bringing about delay.
The window of opportunity is very short. If Ford simply appeals the decision we all know what will happen – delay, delay, delay. And then another municipal election will come up again in four years with nothing done.
Could this be a worrying pattern if Ford continues using the NWC each time he hits a roadblock with the courts? Perhaps. But meanwhile let’s just sit back and enjoy watching the heads of leftwing elites explode while their little fiefdoms are being challenged.
Update – There are so many articles out there about this story but this one is particularly interesting since it explains why the NWC can’t be used regarding the pipeline impasse: Ford’s move against court would never work for Trans Mountain – Don Braid, Calgary Herald.