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The era of notwithstanding clause restraint is over

Canadian Charter of Rights and Freedoms. Photo: Marc Lostracci/Wikimedia Commons

The era of notwithstanding clause restraint is over. Get used to it.

To borrow someone else's felicitous metaphor, Section 33 of the Canadian Charter of Rights and Freedoms was always an unexploded bomb lurking in the rubble of our country's constitutional history like a decaying munition under the modern-day pavements of London or Berlin.

When the notwithstanding clause was inserted into the draft Constitution before its adoption in 1982, the conventional wisdom, or at least the official talking point, was that it would only be used in the gravest situations after sober reflection. In other words, it was to be a constitutional last resort.

We were reassured that politicians who frivolously misused this mechanism to preserve a vestige of the supremacy of Parliament and the legislatures would pay dearly at the next election.

This was always nonsense, and most of us knew it. It assumed voters had an attention span longer than a few days. Nevertheless, it was a convenient lie to tell ourselves to finish an essential job that may have ensured the survival of the country.

It says something good about Canadians that this consensus held for more than 35 years. Since the adoption of the Charter, Section 33 has been used five times, twice by two provinces, Quebec and Saskatchewan, and once by the Yukon Territory. We can disagree with its use in these cases but still agree that in each there was a serious purpose.

No more. What is startling and new is the picayune nature of the dispute Section 33 is now being used by Ontario Conservative Premier Doug Ford to enforce in spite of the ruling of a superior court.

But the biggest surprise is that this has happened in Ontario, which historically has played the role of the grownup of Confederation.

That said, it was always obvious that sooner or later some extremist clown would be elected somewhere who would throw our consensual niceties into the trashcan of history and leave us with an open-ended constitutional crisis until we figured out a way to resolve it.

That's where we are now, thanks to Premier Ford, who turns out to be the very model of the modern parliamentary autocrat. He obviously intends to use the notwithstanding clause as a constitutional first resort. Why bother doing things right when you can just cheat?

That this is happening during the similarly inclined presidential term of Donald J. Trump in the United States of Amnesia should come as no surprise. It's the zeitgeist, with our own uniquely Canadian twist.

It would have been less of a surprise -- and possibly less dangerous, too -- if it had happened here in Alberta.

It was tried here twice, both times during premier Ralph Klein's Conservative government. First, a bill in 1998 used Section 33 to limit compensation to victims of forced sterilization during the Social Credit regime of premier Ernest Manning. But the public outcry was so fierce Klein dropped the idea within hours.

In 2000, the Klein Conservatives tried it again to block same-sex marriage, and were eventually informed by the Supreme Court they lacked jurisdiction in the matter, a federal responsibility.

Arguably, though, Alberta nevertheless had something to do with the current situation. Leastways, it was when Conservatives here unexpectedly lost the provincial government to, of all parties, the NDP in 2015 that the ongoing nation-wide conservative temper tantrum began to work up a head of steam. Soon all restraint went out the window.

Alberta! Where Conservatives were supposed to reign forever! No exceptions. That may have shaken Canadian Conservatives even more than the loss of the federal government to the Liberals led by another hated Trudeau later the same year.

Conservatives were determined to never let something like that happen again -- even if it required the destruction of the country's democratic consensus. As the Canadian-American conservative writer David Frum observed of the actions of the Trumpocracy, "when highly committed parties strongly believe [in] things that they cannot achieve democratically, they don't give up on their beliefs -- they give up on democracy."

Frum wasn't talking about Ford, but he certainly could have been commenting on Ontario's new Dougtatership.

Of course, supporters of Ford's creepy-clown extremism are trying to downplay this as if it were an insignificant matter, merely the future of 22 politicians in a municipality far away whose piddling ambitions have been thwarted.

It is very tempting to accept this explanation. It is reassuring. But like a first lie, the use of the notwithstanding clause to suspend fundamental rights to win Ford's petty personal squabble at Toronto City Hall by gerrymandering that city's politics in favour of his allies will make Section 33 easier to use. When that happens, it will be used in ways more harmful to the national consensus on which Canada's peace and prosperity rest.

To paraphrase the old saw about the lost $5 bill, it's not the lousy five bucks, it's the principle of the thing.

If this works on a matter of not much concern to Canadians outside Metro Toronto, how many fundamental rights will other impatient Conservatives in other places be willing to trample to win more substantial fights? A lot, of course.

If you doubt this, just consider who is defending Ford's logic for ignoring the courts on a matter that could still be resolved by observing the constitutional niceties.

The temptation -- or perhaps the necessity -- to do the same will spread to politicians with other philosophies as they move to quickly undo the legislative depredations of leaders like Ford.

No, like the Trump presidency -- which like Ford's election was something of an unexpected electoral fluke -- this is a big problem, and it's not going to go away.

Obviously we can't depend on people of goodwill committed to democracy in Ford's Conservative caucus to use the mechanisms of Responsible Government to protect our fundamental rights.

Nor can we count on the federal cabinet to disallow the legislation, or the Lieutenant Governor of Ontario to refuse to grant it Royal Assent, although both have power and precedent to do so.

We Canadians are all going to have to figure out for ourselves what to do about it.

It will not be easy.

This post also appears on David Climenhaga's blog, AlbertaPolitics.ca.

Photo: Marc Lostracci/Wikimedia Commons

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