Usually, when a court overturns a law for violating the Charter of Rights and Freedoms, the federal or provincial government either appeals to the highest level or redrafts the offending legislation to ensure that these rights and freedoms are respected.
Ontario did not take any one approach.
Governor Doug Ford is citing despite the clause Article 33 of the Constitution Act Overturning the trial judge’s ruling that his government’s bill to restrict third-party spending in elections is not a reasonable restriction on freedom of speech.
Ford recalled the legislature on Thursday and announced a plan for a marathon to be held over the weekend to push for legislation that invokes despite the provisions. A final vote is expected on Monday.
Ford is not the first prime minister to try to invoke the “nevertheless” clause. He is not the first to spark controversy about whether it is used in the way expected by its creators.
Quebec uses it often; Governor François Legault deployed it preemptively to prevent any challenge to Act 96, which aims to protect the French language in the province.
Former Federal Attorney General Allen Locke said in response to the Quebec Act on Twitter: “The’nevertheless’ clause of the Constitution protects legislation from judicial review and endangers the fundamental freedoms guaranteed by the Charter.” The use is reasonable. But it is becoming very common. It’s time to speak up!”
Used in Saskatchewan -Overturned the 2017 court ruling on funding Catholic schools. Dwight Newman, a law professor at the University of Saskatchewan, defended the decision of then Prime Minister Bradwall.
“Although the clause was an important part of the constitutional negotiations that led to the adoption of the charter in 1982. Without it, some provinces are reluctant to join,” he wrote in the statement. National Post.
“Those who think that even though a clause is illegal to some extent are actually responsible for explaining how the rest of the charter is legal without it.”
Now it is Ford’s turn to allow the government to override the value and purpose of the fundamental rights guaranteed by the courts and charter to initiate another debate.
Is Section 33 a legal tool that the government can use as it sees fit? Or is it a “nuclear option” (as Locke puts it) that its creators intend to use rarely, if at all?
“When you use the despite clause, you are saying,’What I’m doing is unreasonable in a free and democratic society,'” liberal expert David Heller told CBC this weekend house.
“You have to ask yourself, why are they doing this?”
CBC News: House of Representatives10:50Despite the right
Jenni Byrne holds the opposite view. Former senior aides to Ford and Stephen Harper believe that although clauses have been written into the constitution to ensure that public policy will be made by legislators rather than courts.
“So I really believe this is the right move,” she said. “In fact, I’m not sure what the controversy is.”
Byrne insisted that Ontario’s law aims to limit the influence of third parties by restricting third-party spending in the 12 months before the election. The restriction will take effect in the province’s next fixed-date election scheduled for June 2, 2022.
Critics of Ford believe that he is trying to suppress unions and other groups that oppose his government. The leader of the New Democratic Party, Andrea Horwath, called it “the seizure of power.” Others call it dictatorship and undemocratic.
They pointed out Ford threatened to use section 33 -If the court rejects his bill to reduce the size of the Toronto City Council.
‘We need to restore the stigma’
For Heller, who now runs the Gandalf group, the problem is not the election bill itself, but that Ford is just the newest politician — and probably not the last — using albeit clauses to advance a narrow political agenda.
“I think in an ideal world, we would get rid of Article 33,” Heller said, acknowledging that politicians lack enthusiasm for participating in constitutional reforms.
“But I do think we need to restore the stigma of using it. It needs to be something that the government feels embarrassed and afraid to use because of fear of resistance.”
So far, there does not seem to be any political risk in invoking the “nevertheless” clause.No Federalist leader has ever publicly confronted Legault on Bill 96-Quebec may have 78 seats before the possible fall federal elections Played a huge role in the results.
Brad Wall’s Saskatchewan Party did not pay any price. The party was re-elected in 2020 as another majority government under Scott Moe.
Is Ford an easier political target? Byrne thinks so.She told house The media and opposition’s anger at his decision carries a certain political risk.
“But the decision you made is that your position is correct, and you want to move forward because this is the right thing,” she said.
Right or wrong, the majority of Ford’s government will almost certainly pass his bill on Monday—despite any criticism of him or the increasing use of constitutional tools, which many believe is the last political weapon.