When politicians start boasting about the size of their mandate to justify actions that are clearly problematic, I immediately think about a deleted scene from the Star Wars prequel Attack of the Clones. In the extended version of Anakin Skywalker and Padmé Amidala’s arrival on Naboo, Anakin mentions that the people of Naboo were so pleased with Padmé’s time as head of state that they wanted to amend the constitution in order to let her to serve beyond her two terms, to which Padmé balked.
“Popular rule is not democracy, Ani. It gives the people what they want, not what they need,” she said, and it’s a lesson we should all heed. Bad things happen when people start rewriting the rules and violating norms in order to appeal to a popular personality, and it’s relevant in the here and now as Ontario premier Doug Ford starts boasting that he was elected and judges were not.
On Monday morning, Ontario Superior Court Justice Edward Belobaba struck down Ontario’s Bill 5, which would cut the number of city councillors from 47 to 25, using a Charter analysis that was on fairly shaky ground. In response, Ford immediately declared that he would invoke the Notwithstanding Clause to ram the bill through a second time, and offered some fairly chilling justification when it comes to the rule of law.
“I was elected. The judge was appointed,” Ford declared, before falsely declaring that Justice Belobaba was appointed to the bench by former premier Dalton McGuinty when it was actually Irwin Cotler as federal justice minister in the Paul Martin-led government.
“We were elected by 2.3 million people,” he intoned at another point.
“What’s extraordinary is a democratically elected government trying to be shut down by the courts,” Ford stated. “We live in a democracy.”
The problem here, however, is that Ford is confusing democracy with popular rule. Just because you get elected, it doesn’t mean you get to do what you want, with no regard for the norms that govern our system of government.
And violate those norms he has. In order to get Bill 5 passed at a breakneck pace, he ensured that it avoided having committee scrutiny at Queen’s Park, so that it didn’t face any public or expert input during the legislative process. There was no process to get testimony to state that 25 councillors are better than 47, never mind that Toronto had recently been through a lengthy consultative process that determined that more effective governance would mean increasing its size from 44 to 47 councillors. And there was no sense of procedural fairness throughout this process.
More to the point, Ford insisted on ensuring that this bill was adopted after the municipal electoral cycle was already underway, and nominations were about to close. In other words, he had decided to change the rules of the game after it had already started for no discernable reason that what Justice Belobaba termed a fit of pique. There is no overriding governing principle that demanded that this bill be enacted in a rushed manner as it was. It wasn’t a campaign promise, nor was it ever raised during the campaign (and yet Ford insisted in his shaming of the judge that if you want to make laws, you need to seek a mandate). And somewhat disturbingly, Ford’s defenders and apologists keep insisting that he campaigned on a pledge to make government more efficient and this move is clearly related to that, which is hard to fathom how. In fact, there’s just as much compelling evidence that having fewer councillors will make Toronto’s governance less efficient, because the workload can’t be spread around, and councillors will have less time to deal with constituents’ concerns.
While popular rule is the will of the mob, our system relies on that rule being reined in by things like the constitution, the common law and the courts in order to ensure that the tyranny of the majority doesn’t impact on the rights of minorities. Democracy – particularly a liberal democracy like those in the western world – is as much about process as it is about simple majoritarianism. Process ensure fairness and that there are avenues of appeal with decisions are taken by the majority that cause undue hardship on the minority. We have the rule of law to ensure that those processes and rights are respected, and it’s why we don’t subject rights to the whims of the majority.
For Ford to invoke the Notwithstanding Clause in such a cavalier manner is a sign that he isn’t giving the norms of democracy due deference while he pursues an agenda that has been described as vindictive – pursued because Toronto City Council thwarted his plans when he served as a one-term councillor while his brother, the late Rob Ford, was mayor. And while there is a place for the Notwithstanding Clause as part of the Charter of Rights and Freedoms, it’s as an escape valve for when governments feel that the courts have made a wrong interpretation of the law in a way that could be detrimental to other aspects of governance. When it has been invoked, it’s usually after appeals by the courts have been exhausted and a government feels it has no other choice. But in this case, the court decision hasn’t yet been appealed (and there appear to be plenty of grounds for it).
But this is all about haste, and ramming through arbitrary and unfair changes in an abuse of process, and even if Belobaba’s ruling is poor case law, it could at least serve as a speed bump that would allow more time for the law to be properly scrutinized, debated, and receive input from citizens and experts, not to mention by appellate courts. But Ford has decided that his electoral mandate – not even an actual majority of Ontarians at that – trumps the rule of law and our democratic norms. In fact, he’s threatening to use the Notwithstanding Clause in other policy areas, such as against legal challenges to the province’s sex education curriculum, something that again, looks on its face to be capricious. Ford may claim that this is about democracy, but democracy respects the rule of law. Ford is justifying his actions with the size of his mob, which is not how a democracy works. In fact, it’s quite the opposite.
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