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Doug Ford’s attack on Charter rights should also worry LGBT people in Ontario

Ford could use the notwithstanding clause to strip other rights away in the future

Ontario Premier Doug Ford speaks to reporters in Toronto on Sept 10, 2018. Credit: The Canadian Press/Christopher Katsarov

If the Ontario Progressive Conservative caucus had any shame, they’d be begging Toronto voters for forgiveness.

But they threw in their lot with Doug Ford, so here we are.

On Monday morning, a judge threw out the government’s Better Local Government Act which I’m just going to call Bill 5 because really, no one named Ford has any business talking about “better local government.” That’s the bill that halted the Toronto municipal election and cut the number of councilors from 47 to 25. (Incidentally, the bill also reduced the number of strong LGBT contenders for a council seat from three to one.)

I won’t go over the government’s rationale for the bill, because as Superior Court Justice Belobaba found, there wasn’t one. Or, as he memorably described the government’s answer to his request for a rationale: “Crickets.”

Belobaba found that by interfering with an election in-progress, Bill 5 was an unconstitutional infringement of political candidates’ Charter right to political expression.

Normally when a government is found to have violated our most sacred constitutional rights and is so thoroughly rebuked by a respected judge, you’d expect some contrition. Some shame. Some effort to correct the wrong they have done.

But no. As we have learned time and time again, the Fords are immune to shame.

Instead, Ford has announced that he’ll use the Constitution’s “notwithstanding” clause, which allows a government to pass a law that contradicts Charter rights for a limited time, to override the judge’s ruling and pass the law again.

He’s not accidentally trampling on political expression. He’s doing it knowingly, proudly and boastfully.

Unprompted, he crowed that he would use the notwithstanding clause again in the future. Read: he would use the clause again if the courts continue to block his attempts to sweep away our Constitutional rights.

This is an alarming precedent. While the notwithstanding clause has been used a handful of times by other provinces, it has never been used in Ontario. In 36 years, since it was included in the Constitution, no Ontario premier has ever invoked it. All of Ford’s predecessors were cognizant of the voter wrath that would come down on a government who capriciously infringed on our sacred rights.

Even the notoriously homophobic PC governments of Mike Harris and Ernie Eves balked at using the notwithstanding clause when the courts forced them to acknowledge the rights of same-sex couples.

But Ford has announced he has no such qualms. And his apparently spineless Attorney-General, Caroline Mulroney, has gone along with him.

Take a moment to note that for all the scandal and constitutional abuse her father was involved in as prime minister, Brian Mulroney knew that the notwithstanding clause made a mockery of our rights and never once used it. Only a couple months into her political career and it can be argued that she’s already proven herself to be the worst Mulroney. Quite a feat!

All Ontarians should be concerned about this. Ford has made it clear that he will continue to attack our rights and he has dealt a severe blow to our first line of defence: the courts.

Today, it’s Toronto politicians and voters. Tomorrow, who knows?

We already know that LGBT people are in this government’s crosshairs — Ford’s repeal of the sex-ed curriculum was one of his first acts. The Elementary Teachers Federation of Ontario and the Canadian Civil Liberties Association have already initiated separate challenges over it; if they win, will Ford invoke the notwithstanding clause to ensure that an outdated sex-ed curriculum that leaves out queer and trans kids is taught despite their right to equal treatment from the government?

Ford has also put the previous government’s policing reform bill on hold and refuses to rule out if he’ll bring back carding — the practice of police stopping people and collecting information that overwhelmingly targets Black men and that was restricted by the previous government. If Ford brings it back, his threat of the notwithstanding clause takes away a crucial tool to fight it.

Monday’s announcement isn’t the end of the story, however. Ford first has to recall the legislature and pass a new bill through three readings and royal assent. He’s said he’ll allow a free vote on the use of the notwithstanding clause. It’s possible that some PC MPPs can be swayed from supporting the government on this unprecedented strike against democracy in Ontario (it is absolutely worth calling your MPP and letting them know you oppose the bill and the use of the notwithstanding clause, especially if they are a PC).

Another mostly theoretical brake on the law is the disallowance power in the Constitution. This little-used power allows the federal cabinet to disallow a provincial law, but no federal government has invoked it since 1943. Some constitutional scholars consider the power to no longer be viable because it hasn’t been used in so long. My MA is in drama, but I’m not convinced by that argument.

After all, the power was retained in the 1982 Constitution, so it seems like the provinces and Parliament agreed that it was necessary at the same time they agreed on the notwithstanding clause.

While it’s tempting to imagine Prime Minister Justin Trudeau riding in on a white horse and saving the city — a city which gave him 25 MPs — remember: we shouldn’t count on him provoking constitutional crisis. Though really, is there a legal or political downside for Trudeau to be seen fighting tooth-and-nail against the country’s most Trumpian Conservative? (city councillor Kristyn Wong-Tam has already publicly called on the prime minister to act.)

Our final recourse, unfortunately, remains the next election in 2022. A notwithstanding bill expires in five years, so the next election will undoubtedly be fought on this question. Progressives and rights-minded people across Ontario need to get to work now to ensure that Ford is a one-term premier.

And not just in downtown Toronto. The time to start recruiting people to run across all of Ontario is now. And it’s also time for the various progressive factions in Ontario politics to stop squabbling and come together to defeat an existential threat to our rights and democracy.

Editor's note, Sep 11, 2018: This story has been updated to clarify that Bill 5 reduced the number of LGBT contenders for a council seat.

Editor's note, Sep 11, 2018: An earlier version of this story incorrectly referred to Caroline Mulroney as Catherine Mulroney.

Editor's note, Sep 18, 2018: This story had been corrected. An earlier version of this story incorrectly referred to the Canadian Civil Liberties Association as the Canadian Civil Liberties Union.

This story is filed under Politics, Sex education, Canada, Ontario, Opinion
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