Maybe it's the summer heat, or the cycle of the moon, but the past week has seen an outbreak of constitutional lunacy across all levels of government that is hard to fathom. Everybody suddenly has all kinds of political ideas that defy our constitutional norms, and it's legitimately terrifying in terms of what it means for the level of civic literacy in this country. Much of it stems from populist discourse, which everyone is now trying to tap into because they think it will win them votes, but they fail to see the dangers of where it leads that attacking the processes and rules that constrain our democracy can only lead to nowhere good.
To wit, we begin with the incoming federal carbon price backstop, or as it is known colloquially, "Trudeau's carbon tax on everything." While the Saskatchewan government initiated their own court reference as to its constitutionality weeks ago, Ontario joined the fray this week with their own reference under the dubious justification that it's "unfair." But seriously, there was no constitutional argument proffered that would go against previous Supreme Court of Canada rulings that the federal government has the ability tax things, and Manitoba flirted with a court reference of their own before their legal advice was that it was a losing proposition. But wait it gets better. While trying to pump Doug Ford's tires on this file, Andrew Scheer started tweeting out a poll that said that people felt it was provincial jurisdiction to impose a carbon tax and not a federal one. Because apparently, we're subjecting the constitutional to the whims and reckons of people in an issues poll.
(Sidebar to this was the Toronto Star's reporters asking Ontario Attorney General Caroline Mulroney if she planned to invoke the notwithstanding clause against the imposition of a carbon tax, never mind that it's not something that the notwithstanding clause could apply to, and rather than saying this, Mulroney simply said that she was looking at all options. There are not enough expletives to surround the description of this as not only as constitutional buffoonery on the part of the Star, but also Mulroney for not stating this unequivocally).
Next up was Toronto mayoral candidate Jennifer Keesmaat, who launched her campaign by declaring that succession from Ontario was on her agenda. She doubled down on it the following morning, before walking back on that position another day later in an interview, but not before she faced a litany of constitutional questions about how that would work. You see, according to Section 42(1)(f) of the Constitution Act, 1982, the entry of a new province into confederation requires the general amending formula (meaning seven provinces representing at least fifty percent of the population), and you know that any constitutional negotiation will involve all kind of provinces bringing up their own demands, and at least two provinces have statutes on their books that require a referendum to agree to a constitutional amendment. And sure, some novel arguments were proffered by proponents of a Toronto succession that would simply require an act of the Ontario legislature to divide the province and have Toronto turned into a territory as opposed to a full province, but that would have its own constitutional challenges, in particular because Toronto wouldn't have its own Crown, and would place it under largely federal control (with powers that could be devolved over time). But it's not feasible in the slightest, and it's kind of telling that Keesmaat went so long before walking back on it.
Still with Toronto, both Jagmeet Singh and John Tory are demanding that the federal government give the city the power to ban the sale of handguns, but that too involves a bit of constitutional chicanery because that would essentially mean devolving certain criminal powers to the municipality something that should make anyone shake his head in bemusement. Add to that, the cities are creatures of provincial legislation under the constitution, so trying to get the federal government to go over the heads of the provinces to devolve these powers to municipalities is more nonsense.
And then there's Ford's plan to use the City of Toronto Act to cut its number of councillors from a planned increase from 44 to 47, to a mere 25 instead. While constitutionally, he can do so (as much as it's an abuse of power particularly given that the election is already underway), the responses we've seen to this move have been equally ridiculous and against the constitution. One response was from Toronto council candidate Rocco Achampong, who filed a suit in Ontario Superior Court to block the move despite the fact that the bill had only just been tabled when he filed it. Because of both parliamentary privilege and the separation of powers, no court will touch any legislation before it has passed and been given royal assent and yet, Achampong ignored this fact. It would be fine to do so once the law had passed, but not before. Meanwhile, social media is full of people demanding that the lieutenant governor step in and stop Ford presumably by denying royal assent to the bill when it reaches that stage as though the way to deal with a move seen as being anti-democratic was to provoke a constitutional crisis by obliterating responsible government for a recently elected government that has a majority in the legislature. Yeah, that's not going to happen, no matter how loud you yell.
The common thread in all of these are that a great many people who should know better are either demonstrating a gross level of civic illiteracy, or they're capitalizing on the general lack of knowledge by the general public in order to further their agendas. Either way, it's tremendously disappointing and a sign that if we had a more robust knowledge on the part of citizens, that they wouldn't be able to get away with it unchallenged. But seriously the constitution is a Thing, and politicians should stop pretending otherwise in order to score points.
