The Notwithstanding Clause

[jsburbidge]

This has to be the most boneheaded political decision I've seen in Canada for some time.

With the notable exception of Quebec, where its use was tied up with Quebec's overall refusal to accept the Charter back in the 1980s, the Notwithstanding Clause is almost never used for a reason.

If you use it, you're effectively admitting that what you want to do violates rights but you think your aim is more important than human rights. It's a safe move only when you effectively have a large majority of the population behind you. (Legal and political discourse has become more rights-oriented since the introduction of the Charter, but it was recognized back in the 1980s that invoking it was a bad, bad move unless you could claim an emergency or had a really large voter base behind you. The risks are higher now.)

In this case, this isn't even an issue Ford ran on. It is certainly not supported by a strong majority of people who care about it. In fact, the only people who have cared strongly about this up until now have been Toronto voters, and mainly downtown Toronto voters. Lots of people elsewhere, though, will disapprove actively if Ford is seen as violating the charter and running roughshod over court decisions to do so. (Being called a tyrant isn't good for your political reputation: it changes the discourse from condemning "bad legislation" to one denouncing "tyrannical government".)

Also, appealing and invoking the Notwithstanding Clause is a waste of money. The courts are likely to look at what you have just done and say that the case is now moot, so they don't have to rule. If you want a clear judgement on a constitutional issue, don't act so as to render the effect of the appeal moot. (It's been pointed out that part of the judgement depended on the democratic rights which can't be overridden by the Notwithstanding Clause, which raises further questions about legal responses.)

The existence of the court decision in itself is bad news for the government. Its condemnations go well beyond the minimum necessary to find the portions of the act dealing with city council unconstitutional. The judge was critical of the province's inept defense of the reasoning behind the changes both generally in front of him. ("Crickets.") In context, responding to such a rebuke by merely bulling ahead confirms a perception of thuggishness, an attitude of might making right. Scrambling to reinforce a policy you can't defend also just makes you look incompetent, and unprepared (as did the delay of the announced press conference by two hours) .

It doesn't matter to the government right now, with a comfortable majority and over three and a half years to the next election, but it should. This is not the sort of thing which will fade out.

Comments

[dewline]

Many people will not forgive this.

Candidates of opposing parties should start planning with this in mind.

And, first Toronto. And soon, it seems, Ottawa as well from what I read via CBC and the Ottawa Citizen...?

[jsburbidge]

Ottawa raises interesting issues; the Federal government has asserted (and had supported by the courts) a substantial control over the National Capital Region in areas which would normally be provincial jurisdiction. If Ford tries to mess with Ottawa he may just find the door slammed in his face.

[graydon]

Doug is reasonably aware that the thing you do with power is economically cripple your political opposition. It doesn't do any good to argue for authoritarian ideas if there are other functional economic options.

The Harris-and-subsequent determination to reduce Toronto to a dysfunctional status-display theme park has this much logic behind it, and Doug's very aware that his prefered outcomes don't happen in a thriving city.