This month, an Ontario judge did what judges should do when faced with a challenge to government law. He checked the arguments presented to him. He examined what other courts have decided in the past. He’s looked at what the constitution says. Then he announced his verdict. Ontario Supreme Court Justice Edward Morgan has opposed changes to the Election Finance Act proposed by Ontario’s progressive Conservative government.
Doug Ford didn’t like that. He didn’t like that a little. As the political equivalent of a toddler’s screaming fit, the Ontario premier decided that first he would invoke the dissenting clause of the constitution to override the judge and second he would call the legislature back to enforce the changes.
Both steps are exceptional in the circumstances. Governments typically only recall legislators from hiatus on urgent matters, such as ending a crippling strike. This was not remotely in that category. The government wanted to extend restrictions on third-party advertising before the elections and extend the spending cap period to twelve months instead of six. Not exactly a provincial emergency, and little reason to bring lawmakers back into the house for an overnight weekend session.
The use of the regardless clause is rightly called a nuclear option. This incongruous child of the agreement to patriate Canada’s 1982 Constitution allows governments to get rid of portions of the new Charter of Rights and Freedoms if they so choose. Since this means that some of Canadians’ most basic rights are being overridden, most are reluctant to use them. The federal government never invoked the clause. Ontario wasn’t before either, although it got close in 2018.
When governments pull the trigger, it is generally in defense of laws that they – rightly or not – find so important that they justify brushing the courts aside and playing a rare “Get Out of Jail Free” card . Quebec has used it to defend its language laws, which its government deems vital to the province’s cultural health. Again, a six-month extension of an electoral spending bill doesn’t fit in the same category at all – although the Ford government is making every effort to convince voters to do so.
The party’s representative, Paul Calandra, said it was only trying to protect Ontario voters from “high-budget political influence” in the American style. The judge’s verdict, he said, “means that some wealthy elites, corporations and interest groups operating through American-style super-PACs are allowed to intervene and control our elections with unlimited money, no rules, no disclosure and no accountability . “
In fact, the judge sympathized with the government’s attempt to control monetary policy. He just said that if the government wanted to jeopardize freedom of expression by restricting spending – not just for the campaign period or for the six months but a full year before an election – it had better be a good explanation. He realized that there was no such thing.
Mr Ford doesn’t seem to have much time for hair-splitting judges. Shortly after he became prime minister, he passed a law that halved the size of Toronto city council, something he had been thirsting for since serving with his brother, former Mayor Rob Ford. When a judge’s verdict (later overturned) threatened to stand in his way, he said, “He’s the judge, I’m the prime minister.” And if a judge could annul the decisions of an elected government, “that’s scary, it is unsettling. “
No, it’s constitutional democracy. In our system, imperfect as it is, even elected majority governments cannot just do what they want. The courts are there to ensure that when politicians pass laws, they respect citizens’ rights as set out in the country’s last law – its constitution.
So Judge Morgan was just doing his job as he – calmly, measuredly, methodically – reviewed government legislation and decided it was too short. Mr. Ford could have raised his disapproval by appealing to a higher court. Instead, he grabbed the atomic button.
After three years in office and more years at the city level, Ontario’s prime minister still does not seem to accept the concept of limited, accountable government.
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