The sudden comfort with which premiers are deciding to invoke the Notwithstanding Clause is getting a bit uncomfortable, as Doug Ford decided he needed to invoke it after a court struck down his attempts to limit third-party spending in provincial elections in a somewhat arbitrary fashion (given that unions get together to form American-esque political action committees in this province). While you can find a great explainer on Ford and his particular legal challenge in this thread, the more alarming part is the apparent need to reach for the “emergency valve” of the Clause before even appealing the decision to the Court of Appeal or the Supreme Court of Canada.
As @fordnation has announced that the Legislature will be recalled (it had risen for summer recess) to invoke the notwithstanding clause to revive the portions of the Election Finances Act that were struck down by the court yesterday, I will try to explain WTF is going on.
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— Timothy Huyer (@tim4hire) June 9, 2021
There is a perfectly legitimate reason why the Notwithstanding Clause exists, which as to do with keeping a certain amount of parliamentary supremacy in lawmaking, and it gives governments an avenue of recourse if there is a fundamental disagreement with a court’s interpretation of legislation. But lately, it’s being invoked by premiers who know they are trying to push through objectionable legislation – François Legault did it with Bill 21, which the courts have essentially said blocks their ability to strike down any portion of the law, and he’s doing it again with his Bill 96 on trying to obliterate any bilingualism in the province (the same bill that seeks to unilaterally amend the federal constitution). Ford had threatened to invoke it to ram through his unilateral changes to Toronto City Council while they were in the middle of an election, but ultimately didn’t because of a court injunction, and his decision this time is similarly dubious. This willingness to invoke the Clause at the first sign of court challenge or on the first defeat is a very big problem for our democracy, and we should be very wary about this abuse of power, and punish these governments appropriately at the ballot box during the next elections for these decisions.
https://twitter.com/EmmMacfarlane/status/1402715067083280387
In the meantime, here’s Emmett Macfarlane with more thoughts on the court decision that led to this turn of events.
The issue here is the legitimacy of spending restrictions in the pre-writ period. But I'm left wondering why limits on free expression are more permissible *during election campaigns* than before them.
— Emmett Macfarlane 🇺🇦 🇨🇦 (@EmmMacfarlane) June 9, 2021
https://twitter.com/EmmMacfarlane/status/1402712563960455173
https://twitter.com/EmmMacfarlane/status/1402713058913525761