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Federal Disallowance Can’t Be Used To Block Ford’s Use Of Notwithstanding Clause

Voters who are displeased will have to take it out at the ballot box.

Ontarians who are upset about Premier Doug Ford's move to overrule a court decision can protest, speak up in the media and put pressure on their MPPs, constitutional law experts say. There are no other tricks left in the book to stop him.

Some reporters and politicians speculated on Monday that Prime Minister Justin Trudeau could invoke a "disallowance" clause of the Constitution Act of 1867. It says that a governor general can annul laws within two years of Royal Assent.

"Forget that," University of Toronto professor Nelson Wiseman told HuffPost Canada in an interview. "I'm not even sure it's technically possible. You'd have a major constitutional crisis."

Disallowance is what's known as a "spent power." Spent powers are technically on the books, but they're so old they cannot be used. A federal government last used disallowance in 1943.

"It's like thinking that the Governor General can decide she wants to appoint you the next prime minister and dismisses Justin Trudeau," Wiseman said. "The constitution says she can do that, can't she? But would anybody stand for it?"

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This issue should have stayed in the political realm and out of the courts all along, University of Waterloo political science professor Emmett Macfarlane suggested.

"The law is no longer much of an option," he told HuffPost Canada. "Canada has this tendency to over-rely on courts to settle everything. Perhaps this is a good example to maybe reinvigorate our politics."

Ford has a majority government. The bills his MPPs pass will become law whether people like it or not, Wiseman said.

"The penalties have to be political. If people are so upset, you vote against him," he said. "Remember what he did four years from now."

The podium is seen empty as Ontario Premier Doug Ford delays his news conference in Toronto on Sept. 10, 2018.
The podium is seen empty as Ontario Premier Doug Ford delays his news conference in Toronto on Sept. 10, 2018.

Wiseman and Macfarlane also agreed that the judge's decision to declare Ford's law unconstitutional was not sound.

Justice Edward Belobaba ruled on Monday that the province's Better Local Governments Act was unconstitutional because a municipal election was already underway. The law, which moves to slash the size of Toronto's city council nearly in half, violated voters' right to effective representation and candidates' right to freedom of expression, Belobaba said in his decision.

"I thought the judge was off his rocker yesterday," Wiseman said. "I thought Ford was actually accurate when he said every constitutional person he ran this by thought it was perfectly OK."

After the ruling, Ford announced he would call MPPs back from their summer break early to pass the law a second time, this time invoking a clause in the Charter of Rights and Freedoms that lets provinces avoid constitutional review of legislation.

Section 33, known as the notwithstanding clause, has never been used in Ontario before.

The prime minister told reporters on Tuesday that his government is "disappointed" but won't weigh in on the debate over how big Toronto city council should be.

"Anytime a government chooses to invoke the notwithstanding clause to override the charter's protections, it has to be done deliberately, carefully, and with the utmost forethought and reflection," Trudeau said.

Macfarlane said both the government and the court overstepped their bounds in this case.

"I think it's bad decision after bad decision. I think it was manifestly unfair for the Ford government to drop this in the middle of a municipal election. I think the judge yesterday overreached in striking down the law," he said. "And I think the use of the notwithstanding clause is an imprudent decision to defend an imprudent law."

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