Notwithstanding

Thursday December 1, 2022

Editorial Cartoon by Graeme MacKay, The Hamilton Spectator – Thursday December 1, 2022

Danielle Smith declares war on the rule of law

When it comes to Alberta politics, always bet on chaos. That’s been the lesson of the last decade, and it’s clearly going to be the overriding theme of Danielle Smith’s tenure as premier. After winning the leadership of the United Conservative Party on the back of a promise to assert Alberta’s “sovereignty” more aggressively, many people (myself included) expected Smith to add water to her wine to win over more moderate urban voters. Instead, with the Orwellian-sounding “Alberta Sovereignty within a United Canada Act” she tabled yesterday as her government’s Bill 1, she opted for some arsenic. The question now is which will die first: her government or the rule of law in Alberta.

March 21, 2014

“We need the power to reset the relationship with Ottawa,” Smith said during the press conference explaining the proposed legislation. “That’s what this is all about. We’ve tried different things in the past, and it hasn’t worked. So we’ve got to try something new.” That “something new” is actually something quite old: a so-called “Henry VIII clause” that allows cabinet to amend existing legislation without the consent or approval of the legislature. As constitutional scholar Eric Adams wrote, “the cabinet may bypass the legislative process entirely to temporarily amend — for years at a time it would seem — any other provincial law, presumably to further provide measures to resist the application of federal law.”

Saturday November 19, 2022

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

June 16, 2021

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.

November 4, 2022

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)

 

Friday November 4, 2022

Editorial Cartoon by Graeme MacKay, The Hamilton Spectator – Friday November 4, 2022

Virus’, a summons, strike, and notwithstanding: A bad week for Doug Ford

August 3, 2022

Some of the largest pediatric hospitals across the country are being overwhelmed by an unprecedented surge in sick children, forcing them to keep families waiting for hours in emergency departments, cancel surgeries and transfer some teens to adult facilities.

An unusually early upswing in respiratory syncytial virus (RSV) infections is partly to blame. But other problems – including the inability of many families to find primary care providers and a shortage of over-the-counter fever and pain medication for infants and children – are adding to the crisis.

With emergency rooms seeing far more seriously ill children than normal and pediatric in-patient and intensive-care units at or near capacity, doctors say they are unsure how the health care system will cope when cold and flu season hits its peak in the next few months. (The Globe & Mail) 

June 16, 2021

Meanwhile, Ontario has now passed legislation making it illegal for 55,000 education workers represented by the Canadian Union of Public Employees to strike and imposing a contract on them.

The workers are expected to walk off the job Friday after mediation between the Ontario government and the Canadian Union of Public Employees (CUPE) failed to reach a deal. There’s no word on when the job action will end. School boards are advising parents to make alternative child-care plans into next week.

Education Minister Stephen Lecce said the government had no choice but to proceed with its legislation, which includes the notwithstanding clause that allows the legislature to override parts of the Canadian Charter of Rights and Freedoms for a five-year term.

November 2, 2022

“For the sake of Ontario’s two million students, to keep classrooms open, CUPE has left us with no choice but to pass the Keeping Kids in Class Act,” he said.

“It is my hope and expectation that they will show up tomorrow for our kids,” said Lecce, saying the union would not rescind its intent to strike when the two parties went back to the bargaining table. 

Bill 28 will make strike action illegal, though the CUPE has said workers will walk off the job Friday regardless. Early childhood educators, educational assistants and custodians are among those taking part in the strike.

Premier Doug Ford, who was not present during the final vote on Bill 28, said Thursday that the union left him with “no choice” but to introduce Bill 28. He said students have already suffered through two years of pandemic disruptions, and the government will use every tool at its disposal to ensure kids stay in class full-time. (CBC News) 

October 27, 2022

Ontario government lawyers argued Tuesday there would be “irreparable harm” to the rule of law if Premier Doug Ford and a top minister were compelled to testify at a federal inquiry after citing parliamentary privilege in trying to avoid doing so.

But lawyers for the Public Order Emergency Commissioner, which is overseeing the inquiry, argued evidence of that harm was “speculative” at best.

The arguments were made in Federal Court as Ford and then-solicitor general Sylvia Jones look to quash a summons for them to appear at the inquiry examining the the federal government’s use of the Emergencies Act to end the so-called Freedom Convoy protests in Ottawa and Windsor, Ont., last winter.

February 16, 2022

Both Ford and Jones have argued through their lawyers that they’re immune to testifying after invoking parliamentary privilege, a centuries-old privilege enshrined in the constitution that is granted to sitting politicians.

Parliamentary privilege is what protects the separation of court, the Crown and the legislature in the proper functioning of a constitutional system, said Susan Keenan, a lawyer for the province.

Justice Simon Fothergill said both Ford and Jones have “relevant” testimony to give and that the harm to them, practically speaking, is “not all that serious, just two people testifying.”

He noted that parliamentary privilege resulting in immunity to being summoned to a criminal or civil court is a long-standing privilege. But Fothergill said this case will turn on whether he finds that privilege applies to public inquiries.

The judge said he’ll have a decision by Nov. 8, two days before Ford and Jones are schedule to testify at the inquiry. (Global News) 

From sketch to finish, see the current way Graeme completes an editorial cartoon using an iPencil, the Procreate app, and a couple of cheats on an iPad Pro … These sped up clips are posted to encourage others to be creative, to take advantage of the technology many of us already have and to use it to produce satire. Comfort the afflicted. Afflict the comforted.

 

 

Wednesday June 16, 2021

Editorial Cartoon by Graeme MacKay, The Hamilton Spectator – Wednesday June 16, 2021

Ford government pushes through controversial election spending bill with notwithstanding clause

The government of Premier Doug Ford has pushed a controversial bill through the Ontario legislature limiting third-party election advertising by employing a rarely used legislative power.

June 11, 2021

Bill 307, which used the notwithstanding clause to reintroduce parts of a law struck down by a judge last week, passed Monday by a margin of 63 votes to 47.

The clause allows legislatures to override portions of the Canadian Charter of Rights and Freedoms for a five-year term.

A judge found it was unconstitutional for the government to double the restricted pre-election spending period for third-party advertisements to 12 months before an election call.

The Progressive Conservative government argued the extended restriction was necessary to protect elections from outside influence.

The bill passed Monday afternoon after a marathon weekend debate in which opposition politicians argued the government was trying to silence criticism ahead of next June’s provincial election.

“It’s obviously a move from a man who’s desperate to cling to power,” said NDP Leader Andrea Horwath.

December 9, 2010

The New Democrats spent the day trying to drag out the process by introducing a variety of motions on pandemic-related issues they argued should be the focus of the sitting. Ford said earlier on Monday that he wouldn’t be swayed.

“We’re fighting for democracy,” Ford said at Queen’s Park. “I’ll work all day, all night to protect the people.”

Last week, Ontario Superior Court Justice Edward Morgan found it was unconstitutional for the Progressive Conservative government to double the restricted pre-election spending period for third-party advertisements to 12 months before an election call.

A bill that took effect this spring had stretched the restricted spending period from six months to one year before an election is called, but kept the spending limit of $600,000 the same.

Morgan found that the government didn’t provide an explanation for doubling the limit, and his decision meant sections of the law involved in the court challenge were no longer in effect.  (CBC) 

 

Friday June 11, 2021

Editorial Cartoon by Graeme MacKay, The Hamilton Spectator – Friday June 11, 2021

The Canadian Charter’s notwithstanding clause is increasingly indefensible

It isn’t happening in Quebec, but in Ontario, so there will be more of a fuss than would otherwise be the case.

September 14, 2018

But there will be less of a fuss than the last time the Doug Ford government threatened to use the notwithstanding clause to override constitutionally guaranteed rights. The next time it happens, there will be less still. And there will be a next time, and a next time after that, and another, and another – precisely because the political costs of doing so diminish with each use.

This is how the clause is being normalized. This is how, in consequence, the Charter of Rights is being eviscerated. It is already more or less a dead letter in Quebec, where the override has been invoked over the years by governments of every party. Once upon a time it might have caused something of a stir, at least outside the province, as when Robert Bourassa used it to uphold the ban on English-language signs in 1988.

September 21, 2019

But having paid no discernible price for invoking the clause to protect Bill 21, legislation that effectively bars the hiring of religious minorities across much of the public service, Quebec’s CAQ government was quick to do the same with regard to Bill 96, its new and harsher language law. A rights “guarantee” that cannot protect minorities from overt harassment and discrimination – a guarantee that applies only as when the government of the day decides it should – is not much of a guarantee at all.

July 28, 2018

And now it is happening elsewhere. Mr. Ford’s first attempt to use the clause, over a 2018 bill that would have cut the size of Toronto city council in half – in the middle of a municipal election – may have collapsed in confusion, but now the Premier is back for another try. This time the casus belli is Bill 254, legislation passed earlier this year that would, among other things, double the length of time before an election campaign during which third-party advocacy groups would be subject to spending limits.

As before, the Premier has supposedly been provoked to action by a judge’s ruling, overturning the legislation on Charter grounds. But as before this is not really the issue. The government could have appealed either ruling to a higher court, and even had it lost there, it could have rewritten either bill in ways that addressed its purported intent, without unduly limiting Charter rights. (Globe & Mail)