Editorial Cartoon by Graeme MacKay, The Hamilton Spectator – Saturday November 19, 2022
Ford’s retreat notwithstanding, the fight over charter rights is far from over
The events in Ontario over the last week offer only limited solace to those who worry that politicians are increasingly unafraid to use the notwithstanding clause to override judicial rulings on the Charter of Rights and Freedoms.
But in a way, the system worked. Ontario Premier Doug Ford’s government made questionable use of the notwithstanding clause, the public and civil society rose up to say it was unacceptable, and Ford felt compelled to back down.
If the ultimate limit on the notwithstanding clause is “political accountability,” this was an example of the democratic system working more or less as it should.
Fear of a negative public response was supposed to deter governments from using the notwithstanding clause. But Ford already had threatened to use it in 2018 (when he reorganized Toronto’s city council) and he went through with using it in 2021 (to override a court decision on political financing) without suffering much political damage.
So Ford had reasons to assume he could use the clause again without too much trouble.
But the premier and his advisers seem to have discounted at least two factors.
First, the preemptive use of the clause in Ontario, at the expense of organized labour, created an opportune moment for Trudeau to take a loud stand.
Second, while Ford framed his fight in terms of keeping schools open — a message that theoretically should have resonated with Ontario families — it turned out that the workers and the union involved had a lot of allies.
Polling quickly showed public opinion running against Ford. Reporting over the weekend suggested that a number of unions were banding together, with plans for a provincewide general strike.
Ford’s position was untenable and he had to abandon both his back-to-work legislation and its use of the notwithstanding clause.
The result may be that the words “notwithstanding clause” become tainted, much the way “prorogation” was poisoned after 2009. That could help re-establish some of the political accountability over the clause’s use that has been lacking in recent years.
But Ford’s retreat can’t be seen as the end of the conversation. (CBC News)