On Monday September 10th, Justice Edward Belobaba ruled Bill 5, the Better Local Government Act, unconstitutional. Bill 5 is the controversial bill that would nearly halve council from 47 to 25 in the middle of the 2018 election.
Later that Monday at 2pm Premier Doug Ford took an unprecedented step and vowed to amend the Better Local Government Act to include the Notwithstanding Clause in a new bill titled “Efficient Local Government Act.” Prior to this week, an Ontarian provincial government has never included this clause to bypass a court ruling – it is seen as the “nuclear” option of our constitution that has been used only a handful times across the country.
This clause would allow Premier Ford to bypass Charter Rights and Freedoms in Section 2 and 7-15. In short, the clause allows Ford and the Progressive-Conservatives to suspend our Constitutional rights in order to ensure that Toronto city council would stay at 25 councillors.
The Notwithstanding Clause suspends sections that include freedom of thought, religion, expression, association, peaceful assembly, belief, and the right to life, liberty, unreasonable search and seizure, and other Charter items that are cherished by Canadians. The clause allows the legislation to be free from judicial review or challenge for up to five years.
If Efficient Local Government Act passes it will make future uses of the clause much easier – other bills that infringe on your Charter Rights and Freedoms will be easier passed. The Notwithstanding Clause can lead to bills that infringe on your freedom of practicing your religion, your right to not be subject to cruel and unusual punishment, and your right to be equally treated before and under the law.
Our judicial system, which includes the Supreme Court of Canada and its judges, are integral to upholding our Constitutional rights. Ontario’s democracy consists of three branches – the Executive (the Premier and their cabinet), the Legislative (the elected Members of Provincial Parliament), and the Judicial. Ideally, these work in tandem with each other to ensure our democratic and constitutional rights and freedoms.
The three branches should have equal power – however, with a majority government, the Legislative and the Executive branches effectively work as one. Therefore, without a healthy Judiciary, the government works without any checks or balances.
Casual uses of the Notwithstanding Clause allow governments to trample on our constitutional rights in favour of political gain. The careful review of our bills is integral to our democracy and democratic process – we must stand up against Ford’s glib use of the Notwithstanding Clause. The ramifications of this can be severe.