It was the judge, not Doug Ford, who was in the wrong

(This column originally appeared in the Toronto Sun)

By: Candice Malcolm

September 20, 2018

It felt like the sky was falling last week in Toronto. You couldn’t turn on the radio, look at a newspaper (aside from the Sun) or watch the evening news without seeing a total meltdown over Ontario Premier Doug Ford’s suggested use of Section 33 in the Charter of Rights and Freedoms, also known as the Notwithstanding Clause.

The hyperbole was spectacular. A casual observer could be forgiven for thinking that Ford had suspended the Constitution, declared martial law and named himself dictator for life.

The reality was far from the frantic overreaction in the media. What Ford did plan to do was use a tool within the Constitution to nullify one of the most absurd examples of judicial activism in recent memory.

If anything, it was Justice Edward Belobaba’s ruling that was unconstitutional. To borrow the slogans of those protesting Ford, the activist judge’s decision trampled the rule of law and was a flagrant abuse of the Charter of Rights and Freedoms.

Don’t take my word for it, the Ontario Court of Appeal (ONCA) struck down Belobaba’s decision on Wednesday, calling it a “dubious ruling” that very likely “erred in law.”

“Unfairness alone does not establish a Charter breach. The question for the courts is not whether Bill 5 is unfair but whether it is unconstitutional,” said the ONCA ruling, which found that Ford’s bill to reduce the size of city council did not violate the Charter.

It takes quite the stretch in imagination to think that somehow cutting the number of councillors in the municipal government — an area of law explicitly not included in the Charter — was a breach of the Constitution.

Despite media hysteria, it was clear from the start that Belobaba’s decision falls outside the legal norms in Canada.

He took one part of the Charter (Section 3) and tried to apply it to a different section (2.b.), in a last-ditch effort to stop the will of an elected government.

And because the municipal election is just weeks away, Ford couldn’t rely on the appeals process to defend his law. Hence why he planned to invoke the notwithstanding clause — a perfectly legitimate use of that constitutional tool.

According to Howard Anglin, executive director of the Canadian Constitution Foundation, Ford’s decision was proportional.

“When a court intervenes in the political process without a legal justification, it invites chaos,” said Anglin in an interview with the Sun.

Anglin noted that Belobaba’s ruling was a clear example of activism and that the premier was “justified in invoking the notwithstanding clause to defend its constitutional power to pass Bill 5,” which, in his organization’s view, “is constitutional.”

Regardless of the facts in this case, left-wing elites unanimously agreed that Ford’s actions were somehow an attack on the foundation of our democracy.

Funny, I don’t recall these elites lighting their hair on fire when the Saskatchewan government used the notwithstanding clause four months ago, or when Alberta, Quebec and the Yukon Territories have used it over the years.

It’s almost as if they only care because this is happening in downtown Toronto and they have a dog in the fight against Ford.

Thanks to Wednesday’s ruling by the court of appeals, Ford no longer needs to use the notwithstanding clause. Ford’s bill was vindicated, while the hysteric protesters, politicians and journalists screaming about democracy and the rule of law have been exposed as...(READ MORE)