Skip to main content
Complete Olympic Games coverage at your fingertips
Your inside track on the Olympic Games
Enjoy unlimited digital access
$1.99
per week for 24 weeks
Complete Olympic Games coverage at your fingertips
Your inside track onthe Olympics Games
$1.99
per week
for 24 weeks
// //

This month an Ontario judge did what judges are meant to do when faced with a challenge to government legislation. He reviewed arguments that were put before him. He studied what other courts have ruled in the past. He looked at what the Constitution says. Then he handed down his judgment. Justice Edward Morgan of the Ontario Superior Court struck down the changes to the Election Finances Act proposed by Ontario’s Progressive Conservative government.

Doug Ford did not like that. He did not like that one little bit. In the political equivalent of a toddler’s screaming fit, the Ontario Premier decided that, first, he would invoke the notwithstanding clause of the Constitution to overrule the judge and, second, he would recall the legislature to ram the changes through.

Both steps are extraordinary in the circumstances. Governments usually call legislators back from a recess only for urgent matters such as ending a crippling strike. This was not remotely in that category. The government was seeking to extend pre-election restrictions on third-party advertising, broadening the period when spending is restricted to 12 months instead of six. Not exactly a provincial emergency, and hardly a reason to march legislators back into the House for an overnight weekend sitting.

Story continues below advertisement

Ontario Premier Doug Ford holds a press conference in Toronto on May 20, 2021.

Nathan Denette/The Canadian Press

Using the notwithstanding clause is rightly called the nuclear option. This misfit child of the agreement to patriate Canada’s Constitution in 1982 permits governments to exempt themselves from parts of the new Charter of Rights and Freedoms if they so choose. Because that means overriding some of the most fundamental rights enjoyed by Canadians, most are reluctant to use it. The federal government has never invoked the clause. Nor has Ontario before this, though it came close in 2018.

When governments do pull the trigger, it is generally to defend legislation that, correctly or not, they consider to be of such profound importance that it justifies brushing aside the courts and playing a rare Get Out of Jail Free card. Quebec has used it to defend its language laws, which its government considers crucial to the province’s cultural health. Again, a six-month extension to an election-spending law is not remotely in the same category – though the Ford government is striving mightily to convince voters that it is.

The party’s House Leader, Paul Calandra, said it was only trying to protect Ontario voters from American-style “big-money political influence.” The judge’s ruling, he said, “means a few wealthy elites, corporations and special interest groups operating through American-style Super PACs would be allowed to interfere in and control our elections with unlimited money, with no rules, no disclosure and with no accountability.”

In fact, the judge was quite sympathetic to the government’s attempt to control money politics. All he said was that if the government wanted to compromise free expression by applying spending restrictions – not just for the election campaign period or for the existing six months, remember, but for a full year before an election – it had better have a good explanation. He found it had presented no such thing.

Mr. Ford does not seem to have much time for hair-splitting judges. Shortly after becoming Premier, he moved to push through legislation cutting the size of Toronto city council in half, something he had thirsted to do since serving on it with his brother, former mayor Rob Ford. When a judge’s ruling (later overturned) threatened to stand in his way, he said: “He’s the judge, I’m the Premier.” And if a judge could cancel an elected government’s decisions, “That’s scary, that’s disturbing.”

No, it’s constitutional democracy. In our system, imperfect as it is, even elected majority governments can’t simply do as they please. The courts are there to make sure that when politicians make laws, they respect the rights of citizens as set out in the country’s ultimate law – its constitution.

So Justice Morgan was simply doing his job when – calmly, moderately, methodically – he reviewed the government’s legislation and ruled that it fell short. Mr. Ford could have expressed his disagreement by appealing to a higher court. Instead, he reached for the nuclear button.

Story continues below advertisement

After three years in office, and years more at the city level, Ontario’s Premier still doesn’t seem to accept the concept of limited, accountable government.

Our Morning Update and Evening Update newsletters are written by Globe editors, giving you a concise summary of the day’s most important headlines. Sign up today.

Your Globe

Build your personal news feed

  1. Follow topics and authors relevant to your reading interests.
  2. Check your Following feed daily, and never miss an article. Access your Following feed from your account menu at the top right corner of every page.

Follow the author of this article:

Follow topics related to this article:

View more suggestions in Following Read more about following topics and authors
Report an error Editorial code of conduct
Due to technical reasons, we have temporarily removed commenting from our articles. We hope to have this fixed soon. Thank you for your patience. If you are looking to give feedback on our new site, please send it along to feedback@globeandmail.com. If you want to write a letter to the editor, please forward to letters@globeandmail.com.

Welcome to The Globe and Mail’s comment community. This is a space where subscribers can engage with each other and Globe staff. Non-subscribers can read and sort comments but will not be able to engage with them in any way. Click here to subscribe.

If you would like to write a letter to the editor, please forward it to letters@globeandmail.com. Readers can also interact with The Globe on Facebook and Twitter .

Welcome to The Globe and Mail’s comment community. This is a space where subscribers can engage with each other and Globe staff. Non-subscribers can read and sort comments but will not be able to engage with them in any way. Click here to subscribe.

If you would like to write a letter to the editor, please forward it to letters@globeandmail.com. Readers can also interact with The Globe on Facebook and Twitter .

Welcome to The Globe and Mail’s comment community. This is a space where subscribers can engage with each other and Globe staff.

We aim to create a safe and valuable space for discussion and debate. That means:

  • Treat others as you wish to be treated
  • Criticize ideas, not people
  • Stay on topic
  • Avoid the use of toxic and offensive language
  • Flag bad behaviour

If you do not see your comment posted immediately, it is being reviewed by the moderation team and may appear shortly, generally within an hour.

We aim to have all comments reviewed in a timely manner.

Comments that violate our community guidelines will not be posted.

UPDATED: Read our community guidelines here

Discussion loading ...

To view this site properly, enable cookies in your browser. Read our privacy policy to learn more.
How to enable cookies