Home News/Politics Despite Ford's retreat, the fight over Charter rights is far from over. ...

Despite Ford’s retreat, the fight over Charter rights is far from over. News Jani

Despite Ford’s retreat, the fight over Charter rights is far from over.


Events in Ontario over the past week provide only limited comfort to those who worry that politicians are becoming unafraid to use the nevertheless clause to override court rulings on the Charter of Rights and Freedoms. are

But in a way, the system worked. The government of Ontario Premier Doug Ford used the provision questionably, yet the public and civil society rose up to say it was unacceptable, and Ford felt compelled to back down.

If the final limit of the clause is nevertheless “Political accountability“It was an example of a democratic system more or less working.

In this regard, Ford’s adventure in constitutional power plays echoed Stephen Harper’s decision to prorogue Parliament in December 2009.

Initially, it was tempting to assume that Harper’s move—which cut short an investigation into the treatment of Afghan prisoners and suspended Parliament for two months— A meeting will be held with a shrug. by the majority of Canadians. Instead, there were Protests across the country And Public polling Shown a Sharp decline In support of the ruling Conservatives.

Ontario Premier Doug Ford may have had what he thought were good reasons to believe that he could nevertheless use the clause already without harm. (Frank Gunn/The Canadian Press)

Adjournment is not inherently a contemptible tool – in theory, it is simply a mechanism to end one session of Parliament and start another. Harper was also far from the first prime minister to have politically simplistic reasons for using it. But a significant number of Canadians decided that his exercise of power was too much.

It is one way that standards of acceptable behavior—or “political norms”—can be enforced in a democracy. Many of the principles and expectations that define democracy can be codified in laws or regulations and enforced by neutral institutions. But written laws will never account for everything.

The survival of some degree of democracy has always depended on leaders who restrain themselves – or on voters punishing leaders who wield their power too cavalierly.

Ideally, public reactions to scandals then influence future decisions — just as Harper’s repeal in 2009 left a mark.

When Harper tried to dissolve Parliament in 2013, he did. Much less controversial fashion. Prime Minister Justin Trudeau’s Liberals have suspended Parliament only once (Not uncontroversialSince coming to office in 2015. He also followed through on a campaign promise to include a rule requiring the government to explain and defend its decision to suspend parliament after the fact.

How Ford Underestimated the Reaction

Governments were to be deterred from using this clause for fear of negative public reaction. But Ford had already threatened to use it in 2018 (when he reorganized Toronto’s city council) and in 2021 (to overturn a court ruling on political financing) without incurring much political damage. Used it.

So Ford had reasons to assume he could use the clause again without too much trouble.

But the prime minister and his advisers seem to have underestimated at least two factors.

First, the premature use of the clause in Ontario created an opportunity for Trudeau to take an elevated position, at the expense of organized labor.

WATCH: Prime Minister Trudeau criticizes Ford government’s use of spite clause

‘Just don’t actively use the notwithstanding clause’ – PM Trudeau

After Ontario Premier Doug Ford suggested that the federal government reopen talks on the constitution, Prime Minister Justin Trudeau says the solution is for prime ministers not to actively use the clause.

Second, while Ford framed his fight to keep schools open — a message that should theoretically resonate with Ontario families — it turned out that many workers and union allies were involved.

Polling quickly revealed public opinion. Running against Ford. Reporting over the weekend suggested several unions were tying together, with plans for a province-wide general strike.

Ford’s position was untenable and he had to abandon his back-to-work legislation and use of the notwithstanding clause.

The result may be that the words “notwithstanding the clause” become tainted, just as “discontinuance” was poisoned after 2009. This could help restore some of the political accountability over the use of the clause that has been lacking in recent years.

But Ford’s retreat cannot be seen as the end of the conversation.

Yet the unfinished battle over the clause

Even if the Trudeau government has no interest in pursuing a constitutional amendment to repeal the provision, it has at least a few options — one of which may be worth entertaining at this point.

It has been suggested that liberals may restore the use of “Not allowed“A federal power that allows the federal government to override provincial legislation.

Depending on how you feel about the recent use of the nevertheless clause, this may seem like a reasonable approach. But it should probably be treated as a nuclear option — the kind of lever you pull only when you think it’s worth the federal and provincial conflict that is sure to follow.

A less controversial approach would be Send a reference to the Supreme Court. It was asked to rule on whether provinces should be allowed to use the provision in advance, rather than after the courts have ruled against a particular piece of legislation.

Trudeau has focused his attacks on the clause’s prior use. They have argued that this effectively avoids the political accountability that comes when a government is forced to defend using the clause to overturn a decision that violates one’s Charter rights. A violation has been committed. Mandating the federal Department of Justice to argue the issue before the Supreme Court could be an active way for the Liberal government to get directly involved.

But Trudeau and Justice Minister David Lamitie will still be taking their chances with the court. They have to hope that most judges will be willing to impose a new limit on the use of this provision.

Ultimately, ensuring that the clause remains (or is withdrawn) as a rarely used tool of last resort will still depend on how fearful leaders are of the potential backlash.

On that score, last week’s events in Ontario offer no reason for opponents of the clause to declare their mission accomplished.

In Quebec, Bill 21 Still the law – and still is Contested in Quebec courts..

If you are a Muslim living in Quebec and feel discriminated against, you may not feel like the system is working. You may also be wondering when the forces of political accountability will get you the rights you are owed.

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