Despite Ford’s withdrawal, the battle for charter rights isn’t over yet

The events in Ontario last week are a reminder to those concerned that politicians are becoming less and less afraid to use clauses to overturn judicial decisions on the Charter of Rights and Freedoms. It only offers limited comfort.

But in a way the system worked. The government of Ontario, led by Prime Minister Doug Ford, questioned the use of the “despite” clause, with the public and civil society objecting that it was unacceptable, and Ford felt compelled to back down.

Nevertheless, the limit of the clause is “political accountability”This is an example of a democratic system working more or less normally.

In that regard, Ford’s adventures in the constitutional power struggle have echoed Stephen Harper’s decision to suspend Congress in December 2009.

Initially, it was tempting to speculate that Harper’s move evaded an investigation into the treatment of Afghan detainees and suspended Congress for two months. would shrug by the majority of Canadians. instead of, protests across the country When poll showed that plunge Supports the Conservative Party.

Grace is not inherently a mean measure. In theory, it is just a procedure for ending one session of Congress and starting another. Harper was also far from the first Prime Minister to use it for politically expedient reasons. However, a significant number of Canadians judged his use of power to be terrible.

This is one way democracies enforce standards of acceptable behavior, or “political norms.” Many of the rules and expectations that define democracy are codified in laws and regulations and enforced by impartial bodies. But written laws do not explain everything.

To some extent, the continued maintenance of democracy will always depend on whether leaders exercise self-restraint or voters punish those who exercise power too casually.

Ideally, public reaction to violations will influence future decisions, much as Harper’s probation in 2009 left its mark.

When Harper next tried to suspend Congress in 2013, he did so in 2013. less controversial fashionThe liberal faction led by Prime Minister Justin Trudeau has suspended Parliament only once (there is no room for discussionSince taking office in 2015, they have also carried out an election promise to add a rule requiring the government to explain and defend its decision to suspend parliament after the fact.

How Ford underestimated the backlash

Fear of a negative public reaction should have discouraged the government from using the “despite” clause. and used it in 2021 (to reverse a court decision on political funds) without much political damage.

So Ford had reason to think they could use the clause again without too much trouble.

But the prime minister and his advisers appear to be discounting at least two factors.

First, Ontario’s preemptive use of this provision at the expense of an organized workforce created a golden opportunity for Prime Minister Trudeau to speak out.

Watch: Prime Minister Trudeau Criticizes Ford Administration’s Use of ‘Nevertheless’ Clause

Second, Ford framed his battle in terms of keeping schools reopening, a message that theoretically should resonate with Ontario families, but with many involved workers and unions. It turned out that there was an ally of

polls quickly showed public opinion against fordOver the weekend, reports said many unions had banded together in planning a statewide general strike.

Ford’s position was untenable and he had to waive both the Return to Work Act and his use of the provision nonetheless.

As a result, the term “nevertheless clause” may be tainted in the same way that “reprieve” has been poisoned since 2009.This could help re-establish some of the political accountability for the use of clauses that has been lacking in recent years.

But Ford’s withdrawal is not considered the end of the conversation.

Disputes over unfinished terms

Even if the Trudeau administration has no interest in repealing the constitutional amendment, there are at least some options.

It has been suggested that liberals may revive the use of “”disapprovala federal authority that allows the federal government to override state laws.

Depending on what you think about the use of exception clauses these days, that might seem like a legitimate approach. But it should probably be viewed as a nuclear option — a kind of lever that you pull only when you think it’s worth the intense federal-state conflict that is sure to follow.

A less controversial approach would be to send a letter of inquiry to the Supreme Court Rather than using the clause only after a court rules against a particular law, it seeks to determine whether states should be allowed to preemptively enforce the clause.

Trudeau has focused his attacks on preemptive use of this provision. He argued that it effectively avoids the political accountability that arises when a government is forced to defend itself using the clause to overturn a determination that someone’s charter rights have been violated. Federal Department of Justice empowering the Supreme Court to discuss issues could be a positive way for liberal governments to get directly involved.

But Prime Minister Trudeau and Justice Minister David Lameti will still get their chance in court. it won’t work.

Ultimately, however, whether clauses remain a rarely used last resort depends on how fearful leaders are of potential reactions.

In that regard, the events of last week in Ontario provide nonetheless a reason for the opponents of the provision to declare their mission accomplished.

in Quebec, building 21 is still the law — and still is contested in Quebec courts.

If you are a Muslim living in Quebec and feel discriminated against, you probably do not believe the system works. You may be wondering if you can win the rights of