Marie Henein is a lawyer and senior partner with Henein Hutchison.
It’s time for a lesson on law and government 101. I doubt that Ontario Premier Doug Ford will take me up on the offer of a one-on-one lesson, and since it appears that none of those advising our Premier have thought to take on this task, here it goes.
Yes, Premier Ford, the job of the conservative majority is to represent the interests of all Ontarians. The public’s legitimate expectation is that the elected government will act in accordance with its avowed agenda and policies. The government, however, does not have the authority to do whatever it wishes because it was elected. The thing about a law-and-order society, which I know you as Premier are all for, is that the laws apply to everyone – even to the government. So here is your first, very important, lesson: Governments are required to act in accordance with the law and, in particular, our Constitution. Even when you don’t agree with the law.
Here is lesson number two: Politicians are not any more legitimate in our democracy than judges. The judiciary acts as an independent check on government authority because it is unelected, not in spite of it. That is how we, as a democratic country, have decided to govern ourselves. It has worked out pretty well so far.
Moreover, the judiciary has a particular function in protecting the minority from the majority that elected representatives cannot, by nature, be counted on to carry out. To be sure, there are countries where – as you have recently lamented – the problem of judicial meddling does not exist. Those countries are places like Russia and North Korea. There, the supreme leader can do as he wishes unencumbered by the judiciary. You are not a supreme leader, and the courts are a legitimate, necessary check on government. The various arms of our democracy – the courts, the elected representatives, the executive – all serve very important, but different, functions in protecting citizens. That is the layered complexity of a constitutional democracy. In short, you don’t always get to do what you want, no matter how frustrating that is.
And now for your most important lesson: Disagreeing with a legal decision is entirely appropriate. In fact, there is an appellate process that allows you to lawfully challenge the judgment, if you disagree with it. You may not know this yet, but there are people in your government, lawyers at the Ministry of the Attorney-General, who do just that each and every day. We, the public, pay for them, and you have full access. You are welcome. They are very good at their job. You should go and speak to them. They could provide assistance in the form of an articulate critique of Justice Edward Belobaba’s judgment striking down your original bill to cut the size of Toronto city council. “I’m elected and you’re not” does not fall into that category.
Undermining the judiciary and, more importantly, the role that the courts play in our society, even when we disagree with them, is ill-informed bullying. It is a profound public disservice designed to solidify your authority and your base. It disregards norms of forbearance (which means refraining from exercising a power that you have where it is inappropriate to do so) that makes our system function properly. That sort of behaviour incites the public and may grab a few votes along the way, but it is not designed to genuinely lead – which is the job that you were elected to do.
Your comments reminded me of another person who has taken a dim view of the judiciary and done his level best to undermine that institution. A while back, when he received a judgment he disagreed with, he tweeted: “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!" This was followed up by, “Just cannot believe a judge would put our country in such peril. If something happens blame him and court system. …” That was U.S. President Donald Trump.
So here is your final lesson: Mr. Trump is not a good example to follow. Do not forget, Premier Ford, we are Canadian and inherently decent to a fault. The rough-and-tumble populist appeal to which you, apparently, aspire has long-term, negative consequences for the country. No power grab is worth undermining the solid foundations of this country. You owe it to all of us to keep that in mind. Just look to our neighbours to the south.
Bullies never last. Leaders do. Engaging in informed debate and demonstrating respect for the very democratic system that got you elected is a good starting point. I can say it no better than former prime minister Brian Mulroney: “For me, the backbone of our democracy, the strength of our democracy, is the independence and competence of the court system in Canada.”
Any time you want that one-on-one lesson, or a bit of a crash course on the Charter – including section 33, the notwithstanding clause – I’m here for you.