Allan Hutchinson is a distinguished research professor at the Osgoode Hall Law School at York University. He is completing a book on democracy and constitutions.
Doug Ford’s Ontario government is being roundly lambasted for the use of the override provisions of the Constitution. And rightly so. But critics are doing so for all the wrong reasons. They are confusing and collapsing democratic politics and constitutional law.
As much as the critics would wish otherwise, use of the override is not a flouting of the Constitution or the rule of law. The override is as much a part of the Canadian Constitution as the s.15 equality guarantee or s.2’s freedom of expression. There would have been no Charter without s.33’s override provision.
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The problem is that people are getting mixed up about two distinct issues: the constitutional question of what governments can or cannot do as a matter of constitutional law, and what they should and should not do as a matter of democratic politics. Mr. Ford can likely do what he proposes as a constitutional matter, but he should not be doing so as a political matter.
In 1981, the patriation of the Constitution and the inclusion of a Charter of Rights was in serious peril. Ironically, then-prime minister Pierre Trudeau had been told by the courts that he needed the consent of most provinces to move forward: Quebec, of course, never did participate or sign on. When a real impasse occurred, there was a behind-closed-doors kitchen meeting between the provincial attorneys-general and the federal Minister of Justice, Jean Chrétien.
A deal was brokered to include a Charter of Rights on the clear condition that a “notwithstanding” or override power was included. As such, there can be no doubt that, without such a provision, the constitutional logjam would not have been broken. The provinces would have scuttled the federal government’s plans.
However, over 35 years have passed since then. There are at least four law-based caveats that can be floated about the use of the override. First, although broad in sweep, s.33 explicitly does not apply to the democratic and voting rights in ss.3-6. The fact that Justice Belobaba found that the Ontario legislation denied “effective representation” might come to be significant and work to invalidate the override legislation.
Secondly, the courts could graft a s.1-style reasonable limit on the use of s.33. They did this with s.35’s recognition of Indigenous rights, even though there was no mention at all of such a limitation. Thirdly, there might be a reliance on the so-called unwritten principles of the constitution to bolster such a move and contain the override power and the circumstances of its use. After all, the Ford government is using a nuclear option to resolve a relatively small skirmish.
Finally, the courts might declare that, like the still enacted power of the federal government to disallow provincial laws under the Constitution Act 1867, the override power has fallen into disuse and is no longer valid. This is unlikely after only 36 years and with two provinces having used the override in that time.
But all democrats should be wary of such a reliance on judicial manoeuvring, no matter how well-intentioned or timely. In a real democracy, courts have a definite and essential role, but it ought to be a limited one. They might get the first word, but they should not get the last word. That is for the people.
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Of course, there is so much to be critical about regarding whether Doug Ford’s government speaks for the people. It is a democratic failing of our polity and our constitution that majority governments with 40 per cent of the popular vote get to act in an absolutist manner. Mr. Ford never mentioned, let alone campaigned on, this contested issue. But that is about democratic politics, not constitutional law. Once elected, governments should speak for the public, not a sectarian segment of it.
Doug Ford’s feet should be held firmly and closely to the political fire. He is acting, as Justice Belobaba said, more out of “pique than politics.” He should pay a heavy and perhaps fatal political price for that act of hubris. But to maintain that the courts are to be his nemesis and our saviour is a mistaken strategy.
Democracy demands that, if people so chose, governments should be reprimanded and ultimately turfed out. That is the people’s privilege and responsibility. As things stand, people should remember that they sowed the wind in electing Ford and are now reaping the whirlwind.