Why it Still Matters: Reviewing the Bills 5 & 31 Crisis

It seems that Premier Doug Ford has won his first major battle as premier, reducing Toronto council from 47 to 25 members. It also appears that the constitutional crisis over his invocation of the notwithstanding clause (section 33) of the Canadian Charter of Rights and Freedoms has been resolved without his using section 33. Calm has returned to the Ontario political and legal landscape, as far as these matters are concerned, but it is likely to be short-lived. We have learned from this fiasco, and from earlier decisions, that Ford has no regard for political or constitutional conventions and every regard for pursuing an agenda that reflects his own pique and “damn the torpedoes” style.

It also shows us yet again that conflating the political and constitutional roles of the attorney general risks the former overriding the latter, especially, perhaps, in the case of an experienced and weak attorney general.

A brief reminder of how we got where we are and why it matters. With the Ontario Court of Appeal’s decision to grant a stay of Justice Belobaba’s decision finding Bill 5 unconstitutional (and in the course of doing so, delivering the message to the extent possible that the latter’s decision will not be upheld on appeal), we can sit back and review from a (very short) distance the events of the past few weeks and what they presage for Ontario politics in the future.

Ford announced in late July (not long after the June 7, 2018 election) that he intended to introduce legislation to cut the size of Toronto council. There were three problems with this, noted extensively by commentators. Firstly, he had made no mention of this during the campaign. All we had heard was a general and vague promise to cut the size and cost of government. Secondly, the municipal election had already begun. Thirdly, a study had recommended in 2016 that council actually be increased, from 44 to 47 councillors. Not surprisingly, many questioned the shipshod nature of how Ford went about making such a significant decision.

The Progressive Conservative government introduced Bill 5, reducing the number of wards to 25 (and affecting regional governments in the area), on July 30, 2018 and by August 14th, it had received Royal Assent, providing no time for public consultation. To say the bill was rushed is being unduly kind. Despite Ford’s claim that it didn’t make sense to let the current election go ahead, when he would seek to reduce wards subsequently, this is the second “hint” that the motivation behind Bill 5 was suspect.

There is little doubt that the Ontario legislature has the authority, absent other factors, such as the Charter, to enact legislation affecting municipalities, which have no independent status. Their powers derive from the province, a problem highlighted by Ford’s treatment of Toronto and one that requires remedying. This is especially true when the province fails to show sufficient respect for the municipality to engage with it on important matters.

This does not mean that Bill 5 is not suspect. Challenges on Charter grounds seem to have failed, given the Ontario Court of Appeal’s decision (notably a decision “of the Court”) granting a stay of the trial level decision that did find Bill 5 unconstitutional. The Court wasted no words in its assessment that it would not likely survive an appeal (although that nevertheless still remains to be decided after the election). And, indeed, the Superior Court decision did stretch the parameters of the Charter’s guarantee of free expression and its linking of the guarantee of the right to vote with the right of free expression.

Significantly, although the government did appeal the initial decision, this was not enough for  Ford who, before obtaining a stay, jumped with both feet into the sensitive area of the Charter’s notwithstanding clause (section 33). Making his disdain for (and perhaps ignorance of) the political/judicial relationship clear, he announced, “I was elected. The judge was appointed” and that “What’s extraordinary is…a democratically elected government trying to be shut down by the courts.” He followed this with the introduction of Bill 31 containing the override; however, although there was considerable legislative debate and challenge to the override’s use, it was upstaged by the stay of the original decision. This does not mean it would not be resuscitated in the unlikely event that the initial decision is upheld when the appeal of the merits is heard.

Ford’s use of section 33 was a first for Ontario and received considerable blowback, although probably not from those Ford considers his supporters. We shouldn’t expect that he won’t invoke it again. His response is more likely to be “I’ll show you!” than “I’ve learned something about constitutional practice and conventions”. And it seems from this experience that we cannot expect anything better from the attorney general, Caroline Mulroney. While we do not know what she (and perhaps others in the more moderate wing of the party) might have tried to do in private, she has shown herself to favour her political rather than her constitutional role and we likely cannot look to her to ensure that we do not fact this problem again, unless more experience is accompanied by more confidence to challenge her boss.

It can be argued that Bill 5 failed to satisfy the rule of law. On the surface, Ford’s rationale that it was not cost effective to wait until after the current election to introduce the bill, for which there had been no hue and cry, is weak and assumes that the bill would pass the legislature (although it probably would, it’s another thing to assume it) and would be found constitutional if challenged. Bill 5 was based on no studies or consultations. The figure of 25 was determined solely by reference to the number of constituencies in Ontario at each of the provincial and federal levels, ignoring the different role played by municipal councillors and their relationship with their constituents compared to their provincial and federal counterparts. No evidence supported the assertion that reducing the number of wards would save costs, as Ford claimed. Ford also justified Bill 5 as a remedy for what he described as “‘the most dysfunctional political arena in the country‘”. It did not go unnoticed that some of the most dysfunctional times at Toronto council occurred during Ford’s late brother Rob’s tenure as mayor and Ford’s own time as councillor.

That the Bill “came out of the blue”, threatened to disrupt an ongoing election (which is now ongoing, in fact, relatively smoothly), was not based on evidence (and indeed, evidence in the 2016 study contradicted it), failed to recognize the nature of municipal government and councillors’ responsibilities and the history of Ford’s own and his late brother’s experiences on council raised red flags about why Ford introduced the legislation and its timing.

All these factors support a contention that Bill 5 was introduced in bad faith, prompted by Ford’s desire for vindication and to “get back” at those councillors who had opposed him and treated them with disdain. Rob Ford had wanted to halve council and Bill 5 represented a post-death vindication of Rob. It is true that Bill 5 was not a “diktat” of Ford, it was enacted by a majority of the  legislature (all Tories). Nevertheless, it is hard not to conclude that the impetus for Bill 5 came from Ford, not from the party or from other members. This is a case where it can be fairly be said that improper motive and use of the legislative process lies with Doug Ford.

There is a very good chance that he has succeeded, not just in the short term, for this election, but at least until another government decides to increase the number of Toronto wards again. Ford’s abuse of the system worked for him and we can full expect that he will use whatever tactics he needs to achieve what he wants.

Ford’s latest thrust is to establish a committee to look into the reason for the deficit left by the Liberals, promising he’ll reveal the “biggest coverup in history“. Except that there isn’t a coverup, since the issues he’s talking about were revealed prior to the election. At his annual BBQ on the weekend, his supporters chanted “lock her up”, referring to Kathleen Wynne.

We’re on notice, and have been since the campaign, that Ford cares not a whit about respect for the political system, for distinguishing Canadian approaches from south of the border, or indeed, adopting some of them (although he has, so far, supported the federal government on NAFTA) or for accuracy. Doug Ford is a “street fighter”, at least figuratively speaking; he punches first and punches harder when someone tries to push back. He doesn’t care about rules, protocols and conventions. From time to time, the political landscape can use some disruption, some shaking up, but when a premier operates on disruption and chaos for the sake of chaos, we’re in for a jarring and jerky few years that augers ill for Ontario as a whole.

How is Doug Ford Shaping up as a Populist?

Populism is a catch-all phrase for a movement that in some way challenges the status quo; but how it does so may vary. It may be, in simplistic terms, be right-wing (for example,  and Donald Trump in the United States) or left-wing (Venezuela’s Hugo Chavez and his successor Nicolás Maduro, Bernie Sanders in the United States), based on hostility towards immigration (several of the European populist governments and Donald Trump) or to capitalism (again, Bernie Sanders). It likely targets the judiciary (because one of its purposes is to keep government and legislative action within certain bounds (Trump, the Polish Law and Justice party, Viktor Orbán in Hungary). Not all populist movements are autocratic in nature (or become so if they gain power), but many are (of those mentioned above, only Sanders does not attack all institutions and is focused only in a general way on reducing the power of the banks).

Populism in any meaningful sense thrives on divisiveness, pitting segments of society against each other. It is usually manifested in an individual who plays the demagogue, appealing to the populace with simple slogans and easy solutions to what ails them.

Thus Doug Ford’s slogan “For the People”, while seemingly inclusive of everyone, is actually intended to be a rejection of the so-called “elites”. His campaign was built on encouraging divisiveness. Doug is the “every guy” who, despite his wealth, is an outsider who knows what his kind of crowd likes: “a buck a beer”. The rejection of “the elites”, however, is not only about people, but about rejection of those institutions that have been developed by “the elites”, including the mainstream press, the independence of the judiciary and other institutions that have been created to maintain order and ensure the smooth functioning of society. And here lies the rub: for populists, the elites who generally speaking do control those institutions as a result of their education and organizational skills, but also often as a result of their family heritage, operate the institutions to maintain their own power and keep others in their place. (That Ford himself inherited his business (as did Donald Trump) and whose father was a successful politician misses the point: he lacks the gloss and smoothness of elite members.)

When populists do gain power but fail, they blame the elites for subverting them. Elites do the same: blame populists for subverting the institutions that they, so-called elites, consider necessary for effective functioning of society, for democracy and for the economy in ways that pursue particular objectives or values.

Doug Ford is not the first Canadian populist, but he is the one in power now. Ford has been described as “Trump-lite”; one might think of him as “mini-Trump” (a letter writer to the Globe and Mail described him as “Trump of the North”). The reason for comparing Ford and Donald Trump, who casts a larger shadow over traditional and established — and now progressive — expectations, is to see what we can learn about Ford — and the future of Ontario — by tracking Trump. They share some important traits, but as far as we can tell at this point, they are also dissimilar.

What is important about them both is that they claim to speak for “ordinary” people, castigating the so-called “elites” for emphasis and neither respects existing institutions. Where they differ is perhaps in their bigotry, with Trump being racist, something we haven’t seen particularly in Ford. Although he ended the arrangement with the federal government in relation to resettlement of asylum seekers, he has also said he is supportive of immigration and immigrants. Withdrawal from the agreement might be seen as an indirect attack on the movement of immigrants into the province, but it is also akin to the challenge to the federal carbon tax plan. Both are broadsides at the federal government. (Ironically, on that point he is resorting to the very courts he has argued don’t have the right to overturn legislative enactments — more on that below). He is catering to religious minorities who do not like the new sex education curriculum by reverting to the old curriculum in order to undertake what he advertises as “the largest consultation ever in Ontario” on education (this despite the extensive consultation prior to creating the new curriculum) and brought a halt to creation of supervised injection sites without further study (he has been clear that he is against them).

Without diminishing the substantive nature of these issues, most significantly, perhaps, Ford has acted quickly to realize his agenda within days of assuming power as premier. And equally significant, this is a very personal agenda: he is determined to fashion Ontario in his image.

I don’t intend to rehearse all the ways Donald Trump has challenged the status quo or has taken over the Republican Party in the name of populism (or how the Republicans have taken advantage of Trump to accomplish a few long-term goals). Goodness knows, we’ve had enough of that. Let me provide more or less a summary of what we have observed going on during the last going on two years and then consider Ford’s conduct through this lens.

He claims to be working for the common or ordinary person, yet his tax cuts will eventually harm them, as will efforts to dismantle Barack Obama’s Affordable Care Act. He used as his slogan “Drain the Swamp”, but has put together a cabinet (initially and replaced) composed of members of the economic upper class who have in many cases used their positions for personal gain and spent taxpayer money on expensive furniture and first class flights, among other things. He posits “the elites” as the enemy, yet he himself lives extravagantly, and ridicules the elites by claiming he has a bigger apartment than they do — this with the goal of aligning himself with the ordinary person.

He has sought to undermine both the judiciary and the free press. He has captured the Congress (at least until the coming mid-term elections perhaps), which has failed in performing their proper function in a system of checks and balances. In many ways, he has ignored the norms and expectations of the presidency: his erratic tweeting and his failure to put his businesses into a blind trust (they are in the hands of his sons), his upending of long-established international economic arrangements through impetuous imposing of tariffs, his preference for dictators rather than international “friends” and much else have the effect and probably the goal of disrupting the established order.

Some of this is a reflection of his personality: impetuous, narcissistic, hungry for praise (to the extent of constantly praising himself), a high degree of ignorance about the world and processes and lack of interest (or capacity) in learning about them coupled with arrogance and a belief that he knows more than anyone else, paranoid, petty, vindictive and untrustworthy. Indeed, one might argue that many of Trump’s actions result not from a deliberate effort to achieve specific goals, but are merely manifestations of his psychology much more so than most people and much more so than is desirable in a president of the United States. However, they are all directed at disrupting the status quo, whether prompted by his own agenda or that of others. Trump has been a very effective demagogue attracting the ongoing support of a surprisingly large number of people, although he may be losing support.

Watching Trump has given us a head start on understanding Doug Ford; we’ve also had the advantage of seeing Ford’s behaviour while he was on Toronto Council. (Like Trump, election to “high” office does not seem to have matured him.) Although Ford maintains he governs “For the People”, “the People” turn out to be a rather select group. They aren’t people living on a limited income, whether unemployed or the working poor. He wasted no time in reducing social assistance increases and cancelling the pilot project about a guaranteed income. We can expect his government to repeal the amendments (in whole or part) to the Employment Standards Act that would have improved the working conditions for part-time and casual workers and others, many of whom could be described as “precarious”.  He will not be raising the minimum wage to $15, although he will leave it at $14. Ford’s “buck a beer” slogan (and implementation, although not effectively) is meant to substitute for effective policies and programs that might actually improve the conditions of workers and the poor. It tells us what he really thinks about “the People”.

Ford’s decision to reduce the size of Toronto council through Bill 5 reflects both a vindictive streak and a desire to disrupt . This was a chance to get his own back at a council and councillors who had little time for him or his brother, Rob. By giving no notice during the campaign and making the change after the election period had begun, he was able to create the greatest chaos. And lording it over a municipality, especially Toronto, he could exercise a provincial power that (almost) is without restriction.

He has displayed both ignorance and arrogance, as well as a disregard for established norms and constitutional principles in his decision to invoke section 33 of the Canadian Charter of Rights and Freedoms to override the Superior Court decision holding Bill 5 to be unconstitutional. (Reenactment of the legislation includes the override.) (His neophyte attorney general, it is noted, did not appear with Ford when he announced his use of section 33.) This latter is a gift to his supporters who admire his maverick approach and how he’s “putting it to the elites”.

There are, of course, many people who believe in parliamentary supremacy, despite the enactment of the Charter by Parliament, but there is a significant difference between them and the premier of Ontario. Ford summed up this on-going tension when he said “I was elected. The judge was appointed.” (Unfortunately, in addition to revealing that he has no appreciation for the complexities that govern the written constitution and constitutional conventions, he also displayed his ignorance of the system by stating that the judge was appointed by “McGinty”, the former premier of Ontario, when superior court judges are federally appointed.)

More significantly, as a newbie with no experience in governing other than as a municipal councillor or  in constitutional matters, he jumped headfirst into upending over 25 years of constitutional norms, during which, other than in Quebec, section 33 had been invoked only rarely and not always implemented and never in Ontario. The override is part of the constitution and part of the democratic process. It is in inception and impact a political provision, since it reflects a compromise in the constitutional debates resulting in the Constitution Act, 1982, including the Charter, and it expires after five years, leaving the legislation open to judicial review unless the legislation is reenacted with section 33 included.

Ford also intends to appeal the decision (this is the normal thing to do and there is some good chance of success). However, because Ford had rushed through Bill 5 in the first place, waiting for the outcome of an appeal, even if undertaken quickly, would pose even more challenges for the Toronto election. Invoking the notwithstanding clause reverts the election to the status quo ante reflected in Bill 5, an election based on 25 wards. Thus Ford and his attorney-general justify invoking section 33 as a way of bringing stability to the election process. Yet Ford himself is the reason for the instability.

What have we learned if Ford continues as he has started? The model of the populist leader in a democracy south of us provides some insight. The democratic system works only when everyone plays their part. In the United States, Congress is meant to counteract an impulsive, erratic president, but so far it has not done so. This is the risk of the party  holding the presidency and Congress. In Canada, with a majority government we must rely on the members of the governing party to challenge their leader. Trump often makes decisions (apparently) without much thought, often merely to allow him to act the bully or assert his superiority. This seems to be the approach Doug Ford has taken so far with respect to most of the decisions taken within a short time since his election. In both cases, they relish being unpredictable and pursue personal agendas. And in both cases, their greatest flaws override respect for the institutions that together make up democratic governance and the rule of law. Although elected (by the Electoral College), Trump governs as a strong man. Doug Ford is on his way to doing the same. He illustrates that the process of governance is as important as the substance of policies and political decision-making.

Making Sense of Everything…

If only that were possible. Looking at the alternately confusing, disgusting, scary tweets and conduct south of the border, the actions of angry, disillusioned (?) murderers on Toronto streets, the chaos that is Brexit, the brazen actions of authoritarian rulers purporting to be democratic, the treatment of minorities such as the Rohingya (and the sad failures of icons such as Aung San Suu Kyi to respond), ongoing efforts to achieve justice writ broadly:  all these and much else make (seeking some good news) the evidently happy rapprochement between Eritrea and Ethiopia pale in comparison.

I told myself that when I finished at the Law Commission of Ontario, I’d start a blog that allowed me to say pretty much what I wanted, untethered by the sense of responsibility I felt to  the institution. It’s only taken  two and a half years to really get started (I’m ignoring an earlier effort that told me I really didn’t know how to create a blog).

So here it is at last. There’s no particular subject focus, no particular approach, just musings on the events of the day and my interests.