When faced with a premier with dictatorial tendencies, our democratic rights are built on flimsy legal grounds.
On Monday, the Ford government invoked the “notwithstanding” clause to override a court decision on election spending by third-party groups, and with it, our Charter rights.
Last week, Superior Court Justice Edward Morgan ruled that a bill passed by the Ford government back in March, designed to fill Conservative coffers for the next election while restricting opponents from spending money to oppose the government, violated the Charter rights of teachers, unions, and environmental groups, among others.
In his ruling, Morgan found that the Ford government’s attempt to restrict “political” advertising would include virtually any advertising that criticizes the government.
The government’s use of the notwithstanding clause to override the judge’s decision means groups that want to call out Ford for his abysmal record on the pandemic, for example, or plans to pave over swaths of the Greenbelt, will now be restricted in how much they can spend up to a year before the next provincial election and to a maximum of $600,000. The previous law restricted spending to $600,000 up to six months before an election.
Morgan’s ruling agrees with the need for restrictions on third-party advertising in the run-up to elections. But Morgan says that the Ford government provided no rationale for extending the spending restrictions to one year before an election. Morgan writes: “There is no justification or explanation anywhere in the Attorney General’s record as to why the doubling of the pre-election regulated period was implemented.”
The Canadian Civil Liberties Association, which was among the groups challenging the spending retrictions in court, questioned the government’s motives, arguing that “This is not just about the right of third parties to speak out on issues that are important to them – it is about the rights of all the people of Ontario to hear those messages and participate in our democratic system.”
Morgan agreed stating that “skepticism of (the) government’s motives is not misplaced”. That’s as close as a judge can get to saying that Ford is changing the election rules in order to silence his critics and increase his chances of winning the next election.
The Ford government could have appealed Morgan’s decision. But there is urgency to Ford’s actions. We are now 12 months out from the next election, if he is to silence his critics, the quickest way to do it is using the notwithstanding clause.
Ford has a record of taking measures that undermine the checks and balances that protect our democracy.
Last year, he passed Bill 197, which gives him greater powers to appoint partisan judges. He also passed legislation that suppresses the rights of undercover journalists and whistleblowing employees.
In his first six months in office, he made himself the arbiter of what is “free speech” on college and university campuses, attempted to appoint his friend as commissioner of the Ontario Provincial Police, passed several bills that prevent the government from being sued for breach of contract and appointed political allies to lucrative posts while firing political opponents.
The bigger problem for democracy is that there are few tools for opposition parties to use against a majority government even in the most egregious cases.
Ford’s Conservatives, for example, have used “time allocation” to limit the amount of time that any bill can be debated. Opposition measures used in the Legislature delayed the passage of the bill to invoke the notwithstanding clause for a few hours, but Ford was still able to get this bill from introduction on Thursday to law on Monday.
The real danger for Ontarians and our democracy is that Ford has said he “won’t be shy” about using the notwithstanding clause again.
The last time he threatened to use the notwithstanding clause was when he cut the number of seats on Toronto City Council from 47 to 25 in the middle of the 2018 election. A judge ruled that this change violated the Charter rights of the candidates. A second judgment in the government’s favour made the use of an override unnecessary and the case has now been appealed to the Supreme Court.
Few people realize the importance of the decision that is coming from the Supreme Court. The right to free and fair federal and provincial elections is guaranteed in the Charter or Rights and Freedoms, but there is no written right to free and fair municipal elections.
In arguing that Ford’s interference in Toronto’s election was legal, the Appeal Court judges said that Canadians do not have the right to free and fair municipal elections. They wrote that it is not a matter of whether changing the elections rules mid-campaign “was fair or unfair; the question is whether it violates the Charter or is otherwise unconstitutional.” Ultimately the Supreme Court will determine whether we do have the right to free and fair municipal elections, or whether premiers like Ford can intervene in them any way they like.
How strong is our democracy? We’re just beginning to find out.
Chris Glover is the NDP MPP for Spadina-Fort York.
