Is Notwithstanding the New Proroguing? Let’s Hope Not.

Yesterday, in the midst of the whirlwind of noise that surrounded Ontario Premier Doug Ford’s decision to invoke the Notwithstanding Clause to counter a judge’s ruling that countered his attempt to cut Toronto City Council in the middle of a municipal election, I read an opinion piece by Chris Seely in the National Post which labeled his actions “nuclear”. It’s a point that’s hard to argue.

There’s a reason nuclear weapons have only been used one time in war, and I don’t think any sensible reader is expecting me to go into too deep a dive on “Why Nukes iz Bad”. As final blow which many argue saved more lives than a full-scale invasion of Japan would have cost, it made enough sense to people at the time, but the devastation was such that we’ve never seen it again. Nearly every war since has followed the basic trajectory of tension, attack, escalation, negotiation and peace, though not necessarily in that order.

By “going nuclear” on a judge’s decision, invoking a clause in the Charter of Rights and Freedoms which is meant to be used to temporarily suspend rights, Ford is, in a way, agreeing with the judge’s decision that he impinged on the rights of Toronto voters, responding with a “so what?” There’s still an appeal forthcoming, apparently, but one wonders what the point is after scorching the earth?

“Still”, I’ve heard some argue, “he was elected and Notwithstanding is something politicians can use, so he’s not doing anything wrong. Why can’t he use every tool that’s out there?”

Maybe for the same reason a doctor might recommend exercise and a change of diet before suggesting surgery, why a police officer might ask somebody to stop what they’re doing before shooting, or a teacher might teach a concept to kids before testing them on it. Technically, the later are all tools that can be used, but maybe they shouldn’t be the first.

Governments have lots of tools they can use to govern. Over the past decade, we’ve seen the tool of proroguing used a few times. For those unfamiliar, proroguing is when a sitting government ends a parliamentary session early, usually under the auspices of having finished all of their business. On the surface, it sounds reasonable – we’ve finished what we’ve needed to, so why waste time sitting here?

However, when Jean Chrétien used it for the first time in over a hundred years in 2002, he and his Liberal Party were embroiled in the middle of their sponsorship scandal. It was a bold, if not fairly transparent, political move, and received deserved backlash. Since then, we haven’t had to wait 100 years for the next prorogation. Stephen Harper stepped up six years later when the members of the other Canadian political parties teamed up against his minority Conservative government, and again in 2009, when his government was facing heat for its treatment of Afghan detainees (though Harper claimed it was to provide time off during the Winter Olympics). Finally, Dalton McGuinty’s Liberal minority government, plagued by the Ornge and Gas Plant scandals, and difficulties with labour unions, prorogued Ontario’s Parliament in 2012 and, conveniently, stepped down to allow Kathleen Wynne to take charge and the heat.

In each situation, the government could do what they were doing, but when you look at the arguments against, it’s definitely arguable if they should. Now that it seems to have become accepted strategy, I wouldn’t be shocked if we saw it again.

Doug Ford has pulled out his new political trick, one that is meant to be invoked to curb freedoms. It’s a tool he says he’s willing to use again.

I would hope, after the backlash he’s heard, he recognizes what a mistake that would be. I would also hope that, if he does invoke Notwithstanding again, that later politicians, regardless of party, choose to avoid the same mistake. If prorogation is an indication, though, this could be a disturbing new trend in Canadian politics.

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