There's an "arc of history" argument here. Ford is clearly going to be looked back upon with embarrassment in a matter of years. Legault used it to pass a clearly bigoted law that won't age well, either.
By 2040, I think "Use Notwithstanding in haste, repent at leisure" is going to be some kind of saying.
And therein lines one of the primary problems. Ford supporters seem particularly unwilling (or simply don’t care) to question the sensibility of using the clause. The precedent it is potentially setting can adversely effect future governments (and voter-citizens) of any political stripe.
The clause is there to be used, by not only Quebec. The issue in Ontario the huge spending of unions. Which has been pointed out by other than Conservatives.
The money available to unions is minuscule compared to the money available to corporations or the very rich. What is Dougie really afraid of? That someone will point out what a lousy job he has done? This is using a hand grenade to kill a fly.
It's lazy and unethical. Good people would not do this.
Questioning the use of the notwithstanding clause is democratically healthy. It reeks of political desperation on behalf of those who invoke it. When any provincial or federal government uses it or threatens to use it, Canadian eyebrows should collectively go up.
Um, the notwithstanding clause *was* the result of a dispute over political philosophy. Several of the 'Gang of Eight' provincial premiers opposing Pierre Trudeau's actions were concerned about the principle of parliamentary supremacy and elected officials' decisions being overridden by unelected, unaccountable judges. The notwithstanding clause is arguably a compromise on that-the constitutional convention is that the notwithstanding clause is supposed to be an emergency valve, particularly if the court makes an especially bad ruling. Chretien himself suggested it could be used to defang rulings that legalized child porn or hate speech under freedom of expression.
It was the result of political horse-trading? Who cares, so was Confederation. The Upper Canadian Fathers of Confederation and many Maritimers wanted a plain centralized union, but the Lower Canadians were adamant on a federation, so they compromised. Ottawa got the powers deemed most important at the time, the provinces got the powers many Lower Canadians thought were necessary to maintain their francophone character.
And everybody working themselves up about Quebec's values being a little different than the rest of ours needs to remember that most Franco-Quebecois put the "federation" in "Confederation". They've *always* seen themselves as a distinct entity and people from other Canadians, similar to how a lot of Indigenous people see themselves. Why would so many other major Quebec federalists, from André Laurendeau to Claude Ryan to Stéphane freaking Dion have advocated for constitutionally recognizing their province as a "distinct society" in Confederation? Hell, Dion said that Pierre Trudeau's opposition to the Meech Lake Accord was the worst constitutional mistake in Canadian history, and that while we have the practical benefits of Meech now, we don't have its symbolic benefits.
Constitutional historians like Peter Russell have pointed out that the original BNA Act made exceptions and exemptions for Quebec that it didn't make for the other provinces. And Quebec's actions to maintain its Francophone character have actually strengthened national unity. Even Camille Laurin, the author of Bill 101, lamented that it damaged the separatists' cause.
Invoking s. 33 is perhaps a slippery slope, but as the author points out, the skids were greased decades ago. At the risk of sounding like a slowly boiling frog, I disagree with the suggestion that the Ford government is being "lazy" when the only alternative is challenging the law in accordance at the glacial pace of our appellate courts. As they say, "there is no right without a remedy" and such is the case here - Ford's entire purpose for amending the law would be rendered moot if he were made to wait for the learned Justices to pronounce their condemnation. Another way to characterize things is that Ford is answering his critics with the immortal words: "Just watch me."
Unions or Greenpeace or whatever "lefty" group buying ads is hardly at the level of peril that the FLQ crisis was. That is why this move is so egregious. If Doug could prove that the Nurses union has discovered a way to lace their ads with subliminal mind control effects then the judge (and everyone else) would have agreed with him and he wouldn't need to trample on democracy.
Your argument is tautological. Democracy permits Ford to lawfully do what he is doing, so it’s not a trample on democracy, you just don’t agree with him. That’s not to say the legislation is not illiberal or undesirable, but it’s not correct to just call it “lazy” when it’s the only path to for him to accomplish that legislative objective given the timing. Lots of ways to look at this issue.
It IS lazy because he did not exhaust all his other options. He could have appealed the ruling to a higher court or re-written the legislation to satisfy the judge's concerns. Technically you are right in that the Notwithstanding clause exists but it is undemocratic at it's heart and was intended to be used in only the most critical situations. "Nurses might hurt my butt" hardly qualifies.
Last time Doug threatened to use it to reduce democracy in Toronto (during an election!) I heard an interview with Brian Mulroney who said he never thought that the clause should exist in the first place. That was back when conservatives cared about democracy. (Yes, I know he owes us some money and should pay it back).
There is nothing technical about section 33 as it was included in the Charter to give democratically elected provincial legislatures the last word. Mulroney’s historical musings are totally irrelevant as are anyone else’s once the law was passed some 40 years ago. As to other options, important to note that the government could not exercise those options and still preserve the 12 month limitation on pre-writ advertising that passed in the legislature.
Why do they need a 12 month ban in the first place? If they were doing a good job they would have nothing to worry about.
If this stunt was being pulled by a Liberal or NDP government you would be making the same arguments that I am...the difference is that I would agree with you.
We do not need the notwithstanding clause because we have section 1 of the Charter which establishes reasonable limited on any right contained within the document. Chretien was flat out wrong when he said we could use the notwithstanding clause for child pornography because in a free and democratic society it is reasonable to expect limited on freedom of expression to protect minors and people who are otherwise unable to represent themselves. If something doesn't meet the requirements of a Charter with an opening section about reasonable limits, there should be no other mechanisms for enactment, period. The notwithstanding clause was a bad idea when it was put in, we all know why it was put in and how it came to be, but it was not some sort of judicial decision. It was politics and it has no place in a free and democratic society.
And flipping the line The National Post
https://nationalpost.com/opinion/opinion-doug-fords-use-of-the-notwithstanding-clause-stands-up-for-democracy
There's an "arc of history" argument here. Ford is clearly going to be looked back upon with embarrassment in a matter of years. Legault used it to pass a clearly bigoted law that won't age well, either.
By 2040, I think "Use Notwithstanding in haste, repent at leisure" is going to be some kind of saying.
1. The clause is part of the Constitution. Get over it.
2. Ford is limiting the huge advantage union lead Super PAC's currently have in Ontario.
3. Election is in less than 1 year.
4. The writer is clearly a political opponent to Ford.
And therein lines one of the primary problems. Ford supporters seem particularly unwilling (or simply don’t care) to question the sensibility of using the clause. The precedent it is potentially setting can adversely effect future governments (and voter-citizens) of any political stripe.
The clause is there to be used, by not only Quebec. The issue in Ontario the huge spending of unions. Which has been pointed out by other than Conservatives.
The money available to unions is minuscule compared to the money available to corporations or the very rich. What is Dougie really afraid of? That someone will point out what a lousy job he has done? This is using a hand grenade to kill a fly.
It's lazy and unethical. Good people would not do this.
Questioning the use of the notwithstanding clause is democratically healthy. It reeks of political desperation on behalf of those who invoke it. When any provincial or federal government uses it or threatens to use it, Canadian eyebrows should collectively go up.
Any interest in writing a Flipping the Line?
Um, the notwithstanding clause *was* the result of a dispute over political philosophy. Several of the 'Gang of Eight' provincial premiers opposing Pierre Trudeau's actions were concerned about the principle of parliamentary supremacy and elected officials' decisions being overridden by unelected, unaccountable judges. The notwithstanding clause is arguably a compromise on that-the constitutional convention is that the notwithstanding clause is supposed to be an emergency valve, particularly if the court makes an especially bad ruling. Chretien himself suggested it could be used to defang rulings that legalized child porn or hate speech under freedom of expression.
It was the result of political horse-trading? Who cares, so was Confederation. The Upper Canadian Fathers of Confederation and many Maritimers wanted a plain centralized union, but the Lower Canadians were adamant on a federation, so they compromised. Ottawa got the powers deemed most important at the time, the provinces got the powers many Lower Canadians thought were necessary to maintain their francophone character.
And everybody working themselves up about Quebec's values being a little different than the rest of ours needs to remember that most Franco-Quebecois put the "federation" in "Confederation". They've *always* seen themselves as a distinct entity and people from other Canadians, similar to how a lot of Indigenous people see themselves. Why would so many other major Quebec federalists, from André Laurendeau to Claude Ryan to Stéphane freaking Dion have advocated for constitutionally recognizing their province as a "distinct society" in Confederation? Hell, Dion said that Pierre Trudeau's opposition to the Meech Lake Accord was the worst constitutional mistake in Canadian history, and that while we have the practical benefits of Meech now, we don't have its symbolic benefits.
Constitutional historians like Peter Russell have pointed out that the original BNA Act made exceptions and exemptions for Quebec that it didn't make for the other provinces. And Quebec's actions to maintain its Francophone character have actually strengthened national unity. Even Camille Laurin, the author of Bill 101, lamented that it damaged the separatists' cause.
Sex. Not gender. Please stop contributing to those misleading and obfuscating language games.
Invoking s. 33 is perhaps a slippery slope, but as the author points out, the skids were greased decades ago. At the risk of sounding like a slowly boiling frog, I disagree with the suggestion that the Ford government is being "lazy" when the only alternative is challenging the law in accordance at the glacial pace of our appellate courts. As they say, "there is no right without a remedy" and such is the case here - Ford's entire purpose for amending the law would be rendered moot if he were made to wait for the learned Justices to pronounce their condemnation. Another way to characterize things is that Ford is answering his critics with the immortal words: "Just watch me."
Unions or Greenpeace or whatever "lefty" group buying ads is hardly at the level of peril that the FLQ crisis was. That is why this move is so egregious. If Doug could prove that the Nurses union has discovered a way to lace their ads with subliminal mind control effects then the judge (and everyone else) would have agreed with him and he wouldn't need to trample on democracy.
Your argument is tautological. Democracy permits Ford to lawfully do what he is doing, so it’s not a trample on democracy, you just don’t agree with him. That’s not to say the legislation is not illiberal or undesirable, but it’s not correct to just call it “lazy” when it’s the only path to for him to accomplish that legislative objective given the timing. Lots of ways to look at this issue.
It IS lazy because he did not exhaust all his other options. He could have appealed the ruling to a higher court or re-written the legislation to satisfy the judge's concerns. Technically you are right in that the Notwithstanding clause exists but it is undemocratic at it's heart and was intended to be used in only the most critical situations. "Nurses might hurt my butt" hardly qualifies.
Last time Doug threatened to use it to reduce democracy in Toronto (during an election!) I heard an interview with Brian Mulroney who said he never thought that the clause should exist in the first place. That was back when conservatives cared about democracy. (Yes, I know he owes us some money and should pay it back).
There is nothing technical about section 33 as it was included in the Charter to give democratically elected provincial legislatures the last word. Mulroney’s historical musings are totally irrelevant as are anyone else’s once the law was passed some 40 years ago. As to other options, important to note that the government could not exercise those options and still preserve the 12 month limitation on pre-writ advertising that passed in the legislature.
Why do they need a 12 month ban in the first place? If they were doing a good job they would have nothing to worry about.
If this stunt was being pulled by a Liberal or NDP government you would be making the same arguments that I am...the difference is that I would agree with you.
We do not need the notwithstanding clause because we have section 1 of the Charter which establishes reasonable limited on any right contained within the document. Chretien was flat out wrong when he said we could use the notwithstanding clause for child pornography because in a free and democratic society it is reasonable to expect limited on freedom of expression to protect minors and people who are otherwise unable to represent themselves. If something doesn't meet the requirements of a Charter with an opening section about reasonable limits, there should be no other mechanisms for enactment, period. The notwithstanding clause was a bad idea when it was put in, we all know why it was put in and how it came to be, but it was not some sort of judicial decision. It was politics and it has no place in a free and democratic society.