Ontario Premier Doug Ford has announced he intends to use the notwithstanding clause of Canada's Constitution in his battle to shrink Toronto city council and reintroduce his controversial Better Local Government Act.
The unexpected announcement immediately followed a ruling by an Ontario Superior Court justice who determined that the proposed legislation, which would reduce the number of wards in the upcoming Toronto municipal election from 47 to 25, violates the Charter rights of municipal candidates and voters.
If Ford follows through, it will be the first time the notwithstanding clause has been invoked in Ontario. The move has sparked outrage from Ford's political opponents and municipal candidates, who have decried Ford's use of the clause as an undemocratic abuse of power.
Even former prime minister Brian Mulroney, the father of Ford's attorney general, Caroline Mulroney, has publicly called the move "a problem."
Ford's motivation to slash the number of council seats seems clearly motivated by his personal experiences as a Toronto city councillor, where he worked alongside his brother, the late and controversial mayor Rob Ford, to reduce the size of government programs, limit municipal spending and reduce government waste in Canada's most populous city.
But Ford's wielding of the notwithstanding clause should also be understood as part of a broader opposition to judicial activism that has developed among right-wing politicians and academics in the post-Charter era.
Ford is not merely taking a political shot at Toronto city council, but instead is using Section 33 of the Constitution to reassert the primacy of representative institutions over judicial authority.
The Charter revolution
The adoption of the Charter of Rights and Freedoms in 1982 had a transformative impact on Canadian politics. Charter cases have been used to resolve disputes and chart new policy direction over some of Canada's most divisive political issues, including same-sex marriage, abortion, assisted dying, Indigenous rights and religious freedom.
While the Charter has served as an important tool for the recognition of minority rights, it's also invited a great deal of debate and criticism. In their widely influential book, "The Charter Revolution and the Court Party," political scientists F.L. Morton and Rainer Knopff argued that the Charter has undemocratically empowered the judiciary at the expense of elected bodies and the bureaucracy.
Morton and Knopff argue that in empowering the judiciary and allowing for the adjudication of important public policy decisions and social issues, the Charter has helped to create what they refer to as the "Court Party."
Former Prime Minister Stephen Harper was one such disciple of this view of judicial activism
Supposedly comprised of a cadre of left-wing groups and social movements, Morton and Knopff argue that the "Court Party" concerns itself with causes like feminism, gay rights, multiculturalism and environmentalism, relying on the Charter as a strategic tool to pursue their political agendas in the legal arena.
The influence of these views on the Charter has extended well beyond the walls of academia to inform the opinions of political leaders. Former Prime Minister Stephen Harper was one such disciple of this view of judicial activism who, when in power, took steps to eliminate support for the funding of Charter challenges.
It is within this broader intellectual tradition of opposition to judicial activism that we can understand Ford's decision to invoke the notwithstanding clause.
A populist declaration against the courts
In responding to the Superior Court judge's ruling, Ford harkened back to the notion of the "Court Party," while also offering opposition to judicial activism on democratic grounds.
Ford argued that the only opposition to his proposed legislation are "a small group of left-wing councillors" and "a network of activist groups who have entrenched themselves under the power of the status quo."
This framing of his opponents as institutionally entrenched, left-wing social activists evokes many of the defining characteristics of the "Court Party."
The response to the judge's ruling is also consistent with what has become Ford's governing mantra focused on limiting the influence and privilege of special interests while promoting the interests of "the people."
It's along these lines that Ford has also voiced his opposition to judicial activism. Ford concluded his bombshell news conference by stating that, "If you want to make new laws in Ontario or in Canada, you first must seek a mandate from the people and you have to be elected."
Challenged courts' legitimacy
In this statement and others, Ford did not challenge the legal reasoning behind the judge's decision. Instead, he chose to attack the democratic legitimacy of the courts to make a ruling that overrides elected decision-makers.
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Ford's opposition to judicial activism on the grounds that it threatens the power and jurisdiction of elected institutions and representatives is clearly linked to his populist world view and vision of government.
However, it's important to recognize that Ford's framing of his opponents and the role of the courts is not of his own invention. It's part of a longer intellectual tradition among right-wing thinkers in Canada.
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