Why Doug Ford went straight to the ‘nuclear option’ on Toronto city council

Defying the courts by using the notwithstanding clause is a move straight out of the new populist playbook—and Ford has hinted he’ll do it again

Few Ontarians would have predicted this becoming Doug Ford’s signature piece of legislation: a provincial bill designed to cut the size of Toronto city council in half.

Not, at least, until Monday when—mere hours after a judge ruled Bill 5 unconstitutional and ordered the upcoming Toronto election to go forward with 47 wards instead of Ford’s preferred 25—the Ontario premier announced his administration will effectively override the courts by invoking the rarely used Section 33 of the Charter, the so-called “notwithstanding clause.”

“I was elected. The judge was appointed,” Ford said at his press conference. “He gets to use his tools. I’ll use every single tool to stand up for the people of Ontario, stand up for the 2.3 million people that elected this government.

“A democratically elected government trying to be shut down by the courts—that concerns me more than anything,” Ford added. “That should be concerning to every single person in Ontario.”

Never mind that no Ontario premier before him—nor any federal government, for that matter—has ever used the measure.

READ MORE: Why the court ruled against Doug Ford’s attempt to slash Toronto city council

Whether Ford realizes it or not, this will be the defining move of his government—more so given that he boasted that he “won’t be shy” to use the notwithstanding clause in the future. If there was any doubt Ford was going to play the role of disrupter in the fashion of Donald Trump, the newly elected premier has erased it, setting the a tone for the rest of his term. His provincial Conservatives won a majority of seats at Queen’s Park, and in his mind, majority rules.

What’s harder to discern is whether this is a calculated maneuver, or whether Ford is simply going by gut instinct in turning all eyes toward his long-standing feud with the left wing of Toronto city council. This a bill that causes chaos in the megacity’s government. It is drawing charges that he’s abusing a rarely used constitutional power. All, supposedly, for relatively paltry savings to the public purse. What’s the political upside?

“From a strategy point of view, what this shows is a continuation of the campaign which is an increase in polarization of politics in Ontario,” says Jaime Watt, a conservative political strategist and executive chairman of communications firm Navigator. Watt says there are two approaches to governance when a new party is elected. One is to try to grow the base. “The other approach is to keep the covenant with those that voted for you and you deliver for them so they’ll come out and vote for you more enthusiastically. Given what brought Mr. Ford into office, I think he’s choosing the latter.”

Besides, the size of council affects few-to-no constituents outside Toronto—and the heavily populated downtown Toronto largely voted Liberal or NDP anyways.

“This decision will stir the pot,” says Kathy Brock, a political scientist at Queen’s University. “It will incite some anger against his government, but it will also say to his constituents ‘we do as we promise.’ Given one of the clear indications of voter disillusionment is governments coming in and not doing as they said, he’ll likely retain his base with this move.”

RELATED: Will Doug Ford finally get the better of Toronto city council?

To be clear, shrinking city council, was not one of Ford’s specific campaign promises. But for better or worse, he is delivering on downsizing government his own way, say political observers: in this case, that means cutting what Ford and his supporters view as political waste—that is, mostly left-leaning Toronto politicians pursuing their ideological agendas at taxpayer expense.

The question is whether the approach will win favour beyond the card-carrying members of Ford Nation, who will likely stand firm behind their premier no matter what he does. How, for example, will it play among those who voted PC simply because they were tired of the governing Liberals? “It depends on why they voted Kathleen Wynne out,” answers Watt. “There’s lots of research evidence that says there are people who said they were tired of the Liberals’ fetish for consultation and wanted more direct action. Those people will probably be pretty happy with Ford.”

Not all Conservative political strategists agree. Invoking Section 33 is essentially hitting the nuclear button, says Jamie Ellerton, principal of the PR firm Conaptus. “You can debate the judge’s ruling—and the government can fight and appeal this. But in the context of Toronto’s municipal election, with advance polls opening a month from today, to needlessly create chaos while invoking the notwithstanding clause, to die on this hill, is needless burning political capital. These kinds of things won’t play well with the electorate. And for people who don’t follow politics day to day, this will hit their radar and erode favourability ratings for this government.”

Ellerton supports the principle of reducing the size of Toronto council to make city hall more efficient. He also believes it’s within the provincial government’s jurisdiction to do just that. But given the court’s ruling, he says, Ford could have simply watched from the sidelines as Toronto’s election went as scheduled with 47 wards, but then introduced legislation afterwards to cut Toronto council to 25 wards for the city’s following election—a path that would likely have no roadblocks in the eyes of the law.

Indead, Ford is wasting badly needed political currency among “middle-of-the-road voters who aren’t partisan and probably don’t follow the fascinations of government,” Ellerton says. “It’s not bringing Ontario’s ballooning deficit under control or getting kids better education or ending hallway health care.”

RELATED: Political decision-making is speeding up, and that’s bad for democracy

Some critics have noted that the notwithstanding clause has never been used before in Ontario, arguing that overriding the Charter should be done only in rare and important instances. But Brock, the Queen’s political scientist, says this is the type of a scenario where the notwithstanding clause was meant to be used. “Not necessarily this example, but a case where a court decision came down that clearly interferes with a power that province has, and the court goes against what the provincial government believes would be the will of the people.”

By enacting the provision, she says, Ford can claim he’s creating certainty for voters. “Bill 5 is in place. To change the election, again, would throw it into ever more disarray. [The Conservatives] could argue very clearly to the public that that would be unfair in itself to go back to something else after everyone had retooled to the new size of city council. In that case, they could say by allowing this court decision to stand, it will be more unfair to the voters of Toronto.”

Ford’s own timing could have been better, Brock acknowledges: he dropped Bill 5 on the city after candidates began declaring their intentions to run. To mitigate the backlash over that, she says, the government could promise more funds dedicated to helping the 25 elected Toronto councillors provide effective representation to their constituents.

In the meantime, Ford is also sending a message to the courts, she says. “Provinces have seen the courts striking down key pieces of their legislation. And the courts, even though they’re acknowledging the need for judicial deference to democratically elected governments, have been fairly activist in their decisions and its had a real impact on the policy making abilities of governments. This is a government standing up and saying ‘tread a little more carefully, courts, because we are the democratically elected branch of government.’”

Watt, though, predicts other issues will arise that will eclipse this uproar because they are more important to the country as a whole. NAFTA will dominate the headlines, he says; by the next provincial election, municipal ward boundary debates won’t be top-of-mind among voters.

Unless, of course, Ford opts to use the notwithstanding clause again. The possibility has already been raised in relation to the Ford government’s rollback of an updated sex-ed curriculum, a decision which faces a court challenge filed by the Canadian Civil Liberties Association. Ford says he’s focused on the city council cuts for now, but would deal with other decisions as they come his way. 

“He wouldn’t think Bill 5 is the most important piece of legislation,” Watt says. “If he’s willing to use it now, and not be restrained, he’s telegraphing a message that he’s prepared to use it again in the future.”


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