Here is my letter to Doug Ford concerning his use of the notwithstanding clause on Bill 5 . Please consider writing your own letter to the premier on this issue because it is vital to the health of our democracy. Feel free to use mind and or steal sections as you see fit. It is important that Ontarians let Premier Ford no that the manner in which he has conducted himself is grossly unacceptable, whatever one's particular opinion concerning the legitimacy and extent of proper judicial review.
Tuesday,
September 11, 2018
Dear Premier Ford,
I would like to thank you for your time in
reading my letter. For It Is an extension of my freedom of expression rights
protected by the Charter. Though I
did not vote for you, I acknowledge that you one as part of the democratic
process, have a majority, and, thereby, a clear mandate to govern as you see
fit within constitutional limits. I also recognize that the notwithstanding
clause was intended to preserve the democratic will of the people; and,
consequently, I cannot protest its use as such.
I do, however, with the greatest of
respect, raise three concerns regarding its use in relation to Bill 5. As I
have already suggested, the purpose of the constitutional override was to
ensure democratic legitimacy by means of parliamentary sovereignty.
Parliamentary sovereignty, as you are well- aware, receives its normative force
from the will of the electorate. It is your ability to represent and discern
our interest that makes the divestment of personal sovereignty each of us holds
onto our individual members of Parliament legitimate. It is said that sometimes
the judiciary does not represent constituencies, and so the notwithstanding
clause was a constitutional safety valve on issues like language rights,
same-sex marriage, assisted suicide, and abortion, the Parliament or provincial
legislature would, at least on paper, have the last word. I accept this as an
excellent feature of our constitutional design.
Nevertheless, your invocation of it
in this specific case is not normatively defensible. Regrettably, in my respectful
submission, you did not provide Ontarians with an election platform stating
that you would make cuts to Toronto city Council. They, therefore, could not
give you an explicit mandate to do so.
Without this, you do not have a clear democratic mandate on Bill 5, undermining
the ethics of your hasty decision to use the notwithstanding clause.
Second, it seems counterintuitive,
cordially, to use the notwithstanding clause — in the name of democracy — to
overrule a decision that repaired and called to your attention grave defects
your actions have created in the municipal democratic process. The learned
application judge pointed out that your government could likely pass a similar
bill for future municipal elections; the
Charter, however, precluded you from interfering in this specific municipal
election in the manner that you chose.
Third, it is important for the
development of the law and the orderly governance of parliamentary and judicial
affairs that, when a government has objections to a pressing Superior Court
decision, the proper recourse is expedited appellate review.
I acknowledge that some constitutional
scholars may agree with you that this was a bad judgement. Having read the
judgement, and being an aspiring constitutional law scholar myself, I must
confess that I think it has some flaws. Bluntly, however, they, your esteemed
person, and I, are not on the bench. It is for appellate courts to criticize
Superior Court Justices. It offends a basic constitutional convention, not to
mention the standards of polite discourse, for you to do so.
Lastly, in my respectful view, it
seems disproportionate in the extreme and unbecoming of you as Her Majesty’s loyal
servant, to recall the legislature, such that your will — for you have no way
of determining the will of Ontarians on this matter because you never asked
them or outlined it in your platform — be done.
In closing, I do not dispute your
absolute power to legislate within your jurisdiction, nor do I contest your
right to invoke the notwithstanding clause. Yet just because one has the legal
right to do something, it doesn’t follow that one should. In this specific case,
for the reasons I have outlined above, your actions were not normatively
justified. I would also cordially remind you that Her Majesty’s government is a
government of laws, not persons; and it is especially not a government of one
man, in the person of the Premier. With deference to your greater wisdom, there
seems to be a fundamental contradiction and your claim to be “for the little
guy,” when you are so willing to abrogate rights cavalierly. Rights, and
particularly freedom of expression, are what allow the little guy to contest
the power of big guys in government. Indeed, it is what I am enacting right
now.
Again, I thank you for your time,
Connor James Steele
| B.hum, MA , PhD ABD 