Ontario’s Progressive Conservative government recalled the province’s legislature Thursday and outlined a plan for a midnight sitting over the weekend to rush through legislation that will invoke the Constitution’s notwithstanding clause and restore new election finance rules tossed out by a judge this week.
Attorney-General Doug Downey introduced the new election finances bill on Thursday, after MPPs, summoned back after Queen’s Park had closed for the summer, made speeches and observed a moment of silence for the victims of this week’s anti-Muslim attack in London, Ont.
The bill means the government of Ontario Premier Doug Ford, who was not in the Legislature on Thursday, has now introduced two pieces of legislation citing the Charter’s override power – the first two attempted uses of the clause in the province’s history.
The legislature, which does not normally sit on Fridays, will next meet at 12:01 a.m. Saturday morning to begin an overnight debate on the new bill, holding a Question Period at 10:30 a.m. before adjourning. MPPs would then return Sunday afternoon.
The government expects to be able use its majority to pass its bill as early as Monday afternoon, allowing it to circumvent a court ruling this week that deemed its new rules for third-party political advertising were an unjustifiable violation of the right to free expression.
Opposition politicians have condemned the move as a power grab. Some legal experts call it a misuse of the Constitution’s notwithstanding clause, which allows governments to exempt themselves from parts of the Charter of Rights and Freedoms.
Mr. Ford last invoked the clause in a bill introduced in his 2018 battle to cut Toronto’s city council almost in half. After winning a stay from an appeal court, the government let that bill stall at second reading. The issue of Mr. Ford’s intervention in Toronto’s election is still before the Supreme Court of Canada.
In an interview on Thursday, PC House Leader Paul Calandra said the government needs to use the notwithstanding clause to quickly restore its election rules, which cap third-party election ad spending at $600,000 for 12 months before the official 28-day campaign period begins. Ontarians go to the polls in just under a year, on June 2. (A $100,000 cap for spending during the campaign remains in place.)
Critics have accused the government of trying to muzzle its opponents with its election changes, which extended a six-month restricted precampaign period for third-party advertising to a full year. The labour-union-sponsored Working Families group, which has actively targeted right-leaning politicians in recent elections, was behind the court challenge that persuaded a judge this week to deem the new 12-month period a violation of the Charter. The decision left Ontario with no pre-election limits for third-party spending.
Mr. Calandra said the 12-month period – much longer than any other Canadian jurisdiction and double Ontario’s existing limit – is needed because of Ontario’s fixed election dates. And Mr. Calandra defended the use of the Constitution’s notwithstanding clause.
“We are using the tool that is available to us to protect elections, so that elections are done fairly,” Mr. Calandra said.
But many say that Section 33 of the Charter of Rights and Freedoms, commonly known as the notwithstanding clause, is not just another tool – and should be used sparingly.
Former Saskatchewan premier Roy Romanow, who while serving as his province’s attorney-general was one of the architects of Canada’s 1982 Constitution Act, said Section 33 was a compromise meant to balance the powers of elected legislatures and appointed judges – and was meant to be used rarely, and only on major issues.
While noting he had not followed all the details of the debate in Ontario, Mr. Romanow warned against any government using the notwithstanding clause with regard to election rules, as it risks accusations that government is using its power to its own political advantage.
“It opens up the perception that the foot’s been put on one side of the scale,” Mr. Romanow said in an interview.
When Mr. Ford invoked the notwithstanding clause in his 2018 intervention in Toronto’s municipal election, Mr. Romanow, along with former prime minster and federal justice minister Jean Chrétien as well as former chief justice and Ontario attorney-general Roy McMurtry, issued a joint statement condemning the move.
Michael Bryant, executive director of the Canadian Civil Liberties Association, which intervened in the court case, called the PC government’s move a “cravenly self-interested abuse” of the clause’s power.
“No Ontario Premier has ever invoked this nuclear constitutional option – until this one, who has a rash constitutional tantrum whenever a court dares to enforce Ontarians’ constitutional rights,” said Mr. Bryant, a former Ontario attorney-general and Liberal MPP. “Changing the election rules to favour an incumbent government is unconstitutional, and undemocratic.”
Christine Van Geyn, litigation director for the Canadian Constitution Foundation, said the Ontario government is wrong to resort to the notwithstanding clause without even bothering to appeal the judge’s decision – and is intent on silencing its critics.
“It’s obviously self-serving. It’s a demonstration of incumbent arrogance [and] indifference toward freedom of expression,” Ms. Van Geyn said.
Among a series of opposition motions the governing PCs declined to entertain as the session got under way Thursday was one from Liberal MPP Mitzie Hunter, which called on the legislature to condemn Islamophobia and support the province’s anti-racism directorate. Mr. Calandra, the House Leader, later issued an e-mailed statement saying the Legislature had already condemned Islamophobia in 2017 and that the government’s policy is to turn down all such “surprise” motions, which under the legislature’s rules require unanimous consent to be debated.
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