LP_468x60
ontario news watch
on-the-record-468x60-white
and-another-thing-468x60

It is more than a little strange to want to shrink Toronto City Council at all, let alone in the middle of an election.  But when it comes to the rights of citizens, the big issue here is whether our votes matter in public policy.  And we don't elect judges.

I'm not saying we don't need judges, of course, or only need them to settle civil suits and criminal cases.  I'm all for judges striking down laws and executive actions that infringe our constitutional rights.  But our constitutional rights include, and must include, the right to determine how we shall be governed.  Our constitution falls somewhat short in this regard, and nowhere more than on the vexed question of who shall guard the guardians.

It has been understood in the English-speaking world for at least a thousand years that no human being is perfect and may be entrusted with absolute power.  It is the point, badly mangled in recent years, of the real story of Canute, and the basis of the British constitutional system with its checks and balances and separation of powers.

Yes, British.  As I have argued in my documentaries and elsewhere, the Americans in 1787 were not creating a new constitutional order nor trying to.  They were seeking to give more robust and elegant institutional form to a British legacy of liberty they believed was under siege by the Hanoverian monarchs.  And to give it more robust theoretical form in the Federalist Papers one of whose wisest observations was James Madison's Federalist #51: "ambition must be made to counteract ambition."  Thus the various branches must check one another since none could be trusted to check itself.  Not even the legislative, as the French Revolution gruesomely proved.

It might all seem a bit cosmic in context of a strange ruling that to redistrict Toronto City Council during an election violated freedom of speech.  But the ruling prompted a pledge by Premier Doug Ford to invoke the Notwithstanding Clause which, in turn, gave all kinds of people the vapours.  What these fainting blossoms failed to address was, if a judge does overstep their own constitutional bounds, what exactly is it we are meant to do?  Why would the provincial NDP howl that "Our democracy is under attack, and our basic rights are being curtailed" yet have nothing to say about judges using not the comparatively feeble Notwithstanding Clause but the mighty Section 1 loophole to discard any rights they find unseemly impediments to the smooth evolution of our society toward a progressive utopia.

For the record, Section 1 says "The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."  And it is judges who decide what constitutes demonstrable justification and no one can do anything about such decisions.  The Supreme Court invokes Section 1 regularly to uphold laws and acts it cheerfully agrees violate fundamental rights and almost nobody says boo.

We hear little nowadays of the divine right of kings, though the Chinese politburo acts as if they adhered to a version with neither king nor God.  But a surprising number of people in this country have transferred its doctrines over intact to the judiciary.

I actually oppose shrinking Toronto City Council on policy grounds.  I prefer large legislatures to small ones because they are far harder for the executive to dominate at trivial extra cost.  I also think municipal amalgamation a foolish venture in pseudo-conservatism.  But foolish does not mean unconstitutional.

If the constitution guaranteed Toronto 47 councillors and Doug Ford decreed, or the Ontario legislature voted, to cut it to 25, it would be entirely proper for a judge to declare the order-in-council or law unconstitutional.  If the Ontario legislature said Toronto would be run by the Pope, or Planned Parenthood, I could sympathize with a judge declaring it a breach of the Section 3 Charter right to elect "members of the House of Commons or of a legislative assembly", even if city councillors themselves do not always seem to know whether they are a legislature or a board of directors and Section 3 could be read only to guarantee that if an election is held every citizen can vote in it.  But to object to a law that, wise or not, is plainly within the authority of a provincial legislature whose members citizens may vote out in the next election is to substitute the judiciary for the legislative in ways that undermine the fundamental structure of parliamentary self-government.

Nor is it an isolated example.  We increasingly look to judges to take the whole task of government upon themselves, including Greenpeace suing to stop the Ontario Tories from cancelling cap-and-trade.  There is a feeling that judges are not fallible like premiers and prime ministers or MPs and MPPs, and that they not only may usurp the functions of the other branches but that they ought to do so.

In this respect it is important not to fall into the habit of saying Doug Ford shrank city council or scrapped an environmental program.  As the premier, Ford is head of the Executive Council, formally charged with advising the Lieutenant Governor on how to exercise the executive functions of the Ontario Crown but for all practical purposes today with exercising them itself.

The executive functions.  Not the legislative functions.  Those are exercised by the MPPs we elect, and if in fact they divide almost exclusively on partisan lines and Tory MPPs invariably back a Tory premier, it is also a fact that at any moment legislators might react to abuse of power by a premier by voting against his or her programme or, more probably, meeting behind closed doors to say unless you resign we will defeat you.

The ability of those we elect to check the executive branch remains intact even between elections and, of course, every election we can change the partisan balance of the legislature in such a way that the incumbent premier is removed.  But what about judges?  What do those who swoon at the very mention of the Notwithstanding Clause wish us to do if they overstep their bounds and abuse their authority, less for personal gain than in pursuit of a policy agenda of whose excellence they are as firmly convinced as of their own.

If the answer is nothing, we understand that they are not friends of self-government.  Otherwise, stop whining about the Notwithstanding Clause long enough to suggest a feasible alternative to abject surrender.

The views, opinions and positions expressed by columnists and contributors are the author’s alone. They do not inherently or expressly reflect the views, opinions and/or positions of our publication.


This election in Québec is anything but usual, and the leaders' debate Thursday night made that clear.

For the first time in a long time, the heads of the major provincial parties talked about everything but sovereignty.  The idea of a separate Québec, that has hung so heavy over previous elections hasn't made much of an appearance this time around.

Instead the leaders have found themselves arguing over, if you'd believe it, policy.

It's a much appreciated change from the usual fare.  Well, to a point.

Thursday night's debate on Radio-Canada — which is to say, the CBC en français â€” was a combative affair that occasionally crossed the line into outright vulgar.

If shouting is your thing, this was the sort of spectacle for you.  But despite the shambles of the discourse, there were arguments over where to actually take the province.

Health care was a central feature of the election so far.  It's such a hot-button topic that early in the campaign Liberal Leader Philippe Couillard said the man who has held the position of health minister, Gaétan Barrette, will be shuffled into the finance minister position if the Liberals re-form government.  It's hard to imagine another election where a minister was so unpopular in their portfolio that announcing they will not be put back is probably the best way to go.

So, things were prepped Thursday to have health care the primary ground of disagreement for the leaders.

Couillard was attacked for an agreement the province recently signed with medical specialists in the province that significantly bumped their pay.

CAQ Leader François Legault was incredulous that the deal made any sense.

"Doctors in Quebec were paid about 40 per cent less than in Ontario," Legault said, according to a Canadian Press translation.  "Then you gave them a 60 per cent raise."

Both Legault and PQ Leader Jean-François Lisée have promised to cancel the nearly $1-billion deal if they form government.  But not only do they disagree with the Liberal's policy, but they disagree with each other.

Even here, Ontario Premier Doug Ford made a splash.  Lisée took on Legault for his decision to sign a letter 16 years ago promising to set doctors' pay along the lines of the other provinces.

"It's not Doug Ford who sets the salaries of Quebec doctors," Lisée said.

Also at issue were things like senior care and wait times.

But it was at the very end when one of the starkest divisions came about, this time over immigration.  Legault went on the offensive against Couillard, demanding he drop one of the Liberal's candidates for, he said, smearing the CAQ by saying their policies were akin to "immigrant cleaning."

Legault has promised to reduce immigration by 20 per cent, to about 40,000 immigrants per year.  He also wants to subject newcomers to tests on the French-language and cultural issues.

At the debate, Couillard stood his ground, accusing Legault of sowing fear.

It's part of a long-running debate in Québec, where the province's minority-language status compared to the rest of Canada has made cultural protection a theme of elections here.  Last election, the PQ had promised to introduce a "charter of Québec values" that would limit public servants from wearing religious symbols, like hijabs and too-large crucifixes.

This was a policy so unpopular, the winning Liberal government introduced a similar, if perhaps softer, bit of legislation on similar lines.

But, Legault's promises go significantly further than any of the other leaders were willing to go.  He's said that the province would remove those that couldn't pass his government's tests.

So, when Legault started pushing him, Couillard pushed back.

"You know why people react like this," Couillard said, according to the Montreal Gazette.  "You scare them.  Don't open the door to expulsions."

"When you say expulsion, we're not talking about expelling citizens.  We're talking about expelling people who are not yet citizens," Legault said.

It's here where Québecers have a real, stark choice to make Oct. 1 when they head to the ballot box.  The CAQ have said their policy is based on protecting the French language and culture.  But there's little evidence migrants coming to the province are not learning the language, more than 80 per cent of them do.  Nor are they coming in the sorts of numbers that Legault makes it seem they are, as though it was some sort of take over of the province.  (Interestingly, it seems as though inter-provincial migrants, say an anglophone Ontarian like myself, are far less likely to learn the language than migrants from other countries.)

So it's here that, in some ways, the idea of Canada as a welcoming country could be most under threat.  Québec could be the first place where a serious push against immigration becomes a winning election strategy.  The CAQ have capitalized on the province's weariness of the Liberal party, and this is a wedge Legault has shown willing to drive in early, as a way of shoring up his populist bona fides.

It's an important choice facing the people of Québec.  We're not often given the chance to vote on an issue that isn't strictly about federalism.  In some ways it's heartening, but the direction it's taken has shown some of the downsides of a real election.  As we've just seen in Ontario, elections can have serious consequences, very quickly.

The leaders meet again Monday, for an English-language debate, and once more Thursday in French.

Now that summer holidays are over, people have started to tune in.  It's a good thing, because now there's something worth paying attention to.

Photo Credit: National Observer

The views, opinions and positions expressed by columnists and contributors are the author’s alone. They do not inherently or expressly reflect the views, opinions and/or positions of our publication.