Leonid Sirota: Doug Ford's slogans can't hide his attack on the rights of Ontarians

While legal, Ontario’s use of the notwithstanding clause is politically immoral.

By: Leonid Sirota

On June 8, Justice Morgan of Ontario’s Superior Court of Justice ruled that the province’s recent law limiting the ability of civil society groups to take part in political debate was unconstitutional. On June 9, Doug Ford, the Premier whose government caused the law to be enacted, decided that this did not matter. On June 14, a new bill, reinstating the rules struck down by Justice Morgan and invoking the so-called “notwithstanding clause” of the Canadian Charter of Rights and Freedoms was passed by legislature and became law. 

That’s how quickly and easily constitutional rights can vanish into the hot, corrosive air of political gamesmanship in Canada. Even more than Ford’s earlier flirtation with the notwithstanding clause, these events indicate contempt for constitutional limits on government power. The restrictions on political campaigns that Ontario has revived are draconian and intended to silence civil society. But, beyond the specifics of this particular law, it is the disregard for the Charter that is striking. Indeed, there is good reason to believe that the Charter’s four decades of moderating populist and anti-minority impulses in Canadian politics are largely at an end.

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Although political speech is at the core of the constitutional protection for freedom of expression, political advertising during election campaigns has long been restricted in Canada. In Ontario, like federally and in a number of other provinces, the restrictions on political parties and candidates are less strict than those that apply to anyone else. Silencing, or at least muffling, the voices of individuals or civil society groups, known in the election law jargon as “third parties”, is supposed to ensure political equality by preventing them from skewing the partisan competition. It is worth noting, though, that contrary to what one might suppose, it is not typically the wealthy and corporate interests that are silenced by these gag laws, but unions.

In recent years, these restrictions have been deemed insufficient. With the implementation of fixed election dates, groups wanting to engage in political advertising took to timing their blasts to just before an election campaign would officially begin. This has prompted legislation that restricts advertising well before the election writ is dropped. Federal law now imposes restrictions from June 30 in anticipation of an October election. For its part, Ontario first imposed strict restrictions in the six months before a scheduled election campaign begins. And then, a few months ago, it extended these restrictions for an entire year.

This was the law various unions and lobby groups challenged before Justice Morgan. He considered that political equality is a worthwhile goal, and that the imposition of some limits on the ability of “third parties” to take part in election campaigns could be appropriate. Yet he noted that the experts the Ontario government had hired had previously declared that its original six-months law was a good way to address the perceived excesses of third-party advertising. Neither they nor the government explained why the additional restrictions of the civil society groups’ freedom of expression were necessary. Whatever the merits of the initial law, the additional abridgment of the freedom of expression was, therefore, unjustified and unconstitutional.

Yet this law, this extension of political censorship unsupported by his government’s own experts, is what Ford’s government has reimposed thanks to the Charter’s “notwithstanding clause”. It can do this. The “clause” allows the government to, in effect, suspend some of the Charter’s protections, including the freedom of expression, for up to five years at a time. Québec recently used the same mechanism to insulate its illiberal and discriminatory ban on government employees wearing religious clothing from constitutional scrutiny. 

But, while legal, Ontario’s use of this power is politically immoral. The government has not said that Justice Morgan is wrong; it might not even appeal his decision. By contrast, when its law to reduce the number of city councilors in Toronto was briefly overturned, the government considered invoking the “notwithstanding clause,” but first it pursued an appeal to correct what it (rightly) saw as a legally dubious judgment. It succeeded at having that judgment overturned, though that case is currently before the Supreme Court. Now, Ford’s government is simply abandoning the judicial route and ousting the application of the Charter

This is not how governments committed to respecting citizens’ rights behave. To be sure, constitutional rights are seldom absolute, and reasonable people can disagree about where appropriate limits are. The positive spin on the notwithstanding clause is that it allows legislatures to impose their considered opinion about reasonable restrictions on rights in the face of judicial obstinacy. But a bill rushed through a supine legislature in four days, with no consideration by a standing committee or broader public debate, cannot seriously be said to represent such an opinion. 

If nothing else, governments owe those whose rights they seek to limit an explanation of why this is necessary for some greater good. When those whose rights are being restricted are the government’s political adversaries, as is the case in Ford’s conflict with unions, the explanation ought to be especially clear and compelling. Yet Ford’s government has provided nothing more than sloganeering about the dangers of American-style election campaigns, which Justice Morgan’s decision in no way authorized, because it kept in place all the restrictions that applied during the actual election campaigns. 

The truth is that, for the populist governments of Canada’s two largest provinces, ousting the application of the Charter by resorting to the notwithstanding clause is not the consequence of serious reflection about constitutional rights. Rather, they have come to treat it as a routine policy choice. Ford’s critics will be silenced, and religious minorities excluded from Québec’s civil service and public schools. These examples show that the abandonment of constitutional constraint comes at the expense of the politically unpopular, and often of those who―as tragic recent events remind us―already suffer terrible prejudice. It was always a mistake to think that the Charter had magically transformed Canada into a paradise of liberty and multiculturalism. But it had made Canada a better place than it would have been without it. How much better? Soon, alas, we shall find out. 

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