Ontario Premier Doug Ford’s first few months in power have been nothing if not eventful. His tenure so far has been marked by the rapid-fire imposition of his reactionary political agenda and an intense bellicosity towards supposedly sacrosanct liberal democratic norms. His bull-in-a-China-shop approach has not only drawn sharp condemnation from the left, but also inspired commentators from across the political spectrum to accuse him of undermining the cornerstones of our democracy: the courts, the Constitution, and the Charter of Rights and Freedoms.
This Fordian volatility is likely a taste of what we can expect for the next four years if we do not build a serious opposition to his government and its business backers. But we should be deeply skeptical of arguments and strategies that centre the law as the prime way of challenging undemocratic overreach, rather than mass movements in our workplaces, on our campuses, and on our streets.
Doug Ford v. Toronto
Doug Ford signaled early on that he will not be constrained by the polite niceties commonly expected in the arena of official politics. He broke with the tradition of a quiet summer transition by moving quickly to beef up austerity and law and order. For example, he refused to implement new checks on policing and cut social assistance rates. He has threatened to eliminate the promised $15 minimum wage and has gifted more money to businesses by way of workers’ compensation premium cuts at the expense of injured workers.
For those watching him closely, these steps were not unexpected. But he took almost everyone by surprise, even members of his own party, when he began waging his campaign against the Toronto City Council. When his plan to cut Council in half to make it more “efficient” was initially struck down by the courts on the grounds that it violated freedom of speech, he shocked people across the political spectrum by immediately announcing his intention to use the notwithstanding clause to save the legislation. This was an unprecedented move.
In a less reported aspect of his maneuvers to save the law, the bill he introduced in the Legislature within days of the court loss also insulated the law from challenge on the basis that it discriminates by overriding the Ontario Human Rights Code. Again, an unprecedented move.
Of the judge who ruled against him, Ford said, “I was elected. He was appointed.”
A subsequent court ruling had the effect of reinstating Ford’s twenty-five-person Toronto City Council (at least until an appeal is heard after the election), which means that Ford no longer needed to invoke the notwithstanding clause. Bill 31, the Efficient Local Government Act, will not be passed (at least for now). But it is clear that he had every intention of using the notwithstanding clause if necessary, criticism of overreach be damned.
Ford’s steamroller approach to liberal rights and democracy provoked harsh criticism, including from many in the media and his own party who otherwise support much of his political agenda. The brazenness of his actions and words and cavalier dismissal of opposition is something that just isn’t done. Or is it? Maybe Ford has just laid bare the tension at the heart of liberal democracy; that it is supposed to give the impression of protecting fundamental rights while in reality it props up capitalist wealth and power.
Capitalism v. Equality
Ford claims to be defending democracy from unelected judges, yet clearly that is not what is driving his agenda. Ford’s concern about judges interfering with political decision-making is highly selective. He did not appeal when the courts ruled in favour of Tesla after the latter sued the province in response to Ford’s cancelation of Ontario’s electric vehicle rebate program. Quite the opposite – he capitulated. And Ford is using the courts – and their unelected judges – to attack the Trudeau government’s carbon tax.
Ford’s claims to be defending democracy ring very hollow. Thanks to our single-member-plurality electoral system his own government won a majority of seats in the legislature despite receiving only 40.5 percent support of those who voted. So despite almost 60 percent of voters rejecting him, he can brush aside criticisms of his policies with open disdain of critics and in the process, if needed, trample over accepted norms of liberal democratic practice and parliamentary procedure in Canada. As he says repeatedly, 2.5 million Ontarians voted for him. In his eyes, he has a mandate to steamroll the 11.6 million who did not.
Many of the commentators who spoke out against Ford’s use of the notwithstanding clause described it as an unconscionable violation of precious and unimpeachable liberal democratic norms. Ford, it is argued, does not demonstrate the proper respect for our liberal institutions and has undermined the judicial branch of government, a branch that plays a critical role in ensuring that governments do not abuse their power. In our urge to reveal the authoritarian nature of Ford, we may be inclined to repeat this perspective uncritically. And certainly we should defend even desperately weak liberal democratic rights and practices. It is always easier to organize for social change within a democratic context (even if a very flawed one), and if our rulers can narrow democratic rights without serious opposition, they will take that as a signal to push further still.
But Ford is not wrong when he says the notwithstanding clause is part of the law and was created to be used. Ford’s invocation of the notwithstanding clause, and his threat to use it again in the future, is less an attack on the rule of law than a stark reminder that the rule of law has never been, nor was it intended to be, the animating feature of liberal society the way that liberals boastfully claim it to be, and many of us perhaps assume it to be. Nor could it be.
That is why the Charter (or comparable laws in other jurisdictions) can guarantee us all the right to equality before the law while the profound structural inequalities that shape capitalist societies continue unchecked by the courts. The legal right to equality can only exist at a high level of abstraction in a society whose members have such profoundly asymmetrical access to wealth.
Liberal ideology, and its principles of rule of law and constitutional rights, emerged as a foundation for capitalist societies – societies that are themselves antithetical to equality. A small minority owns the majority of society’s wealth, and the rest of us work for those owners with no democratic say over how that wealth is used or distributed. In no way can equality or democratic rights truly exist in anything but a general and abstract form where the basic precepts of class and colonial rule (such as private property and dispossession) go unchallenged and are themselves encouraged by law.
Indeed, historically liberalism and democracy were not part of the same project. The pillars of liberal society – rule of law, government with consent, freedom of speech and assembly – were never intended by the architects and theoreticians of this society to extend to the majority of the population. Most of the great liberal thinkers – Locke, Bentham, Mill, Tocqueville, among many others – disdained the propertyless, women, and the colonized. Their disdain was matched only by an overwhelming fear of what would happen to wealth and property should these groups successfully mobilize from below to assert their democratic aspirations. Liberal law was designed to stop, not facilitate, that possibility.
The extension of liberal rights to broader layers of society was the product of centuries of militant mass struggle by workers and others bearing the brunt of inequality. These victories were incredibly important, extending rights to people who had been intentionally excluded from the democratic process. But these democratic rights on paper are belied by the ongoing experiences of inequality and oppression by these same groups. Access to suffrage, speech, assembly, and justice has always been filtered, if not outright obstructed, by things such as one’s class, gender or citizenship status. The fierce resistance of the rich and powerful to these rights, now and in the past, betrays their absolute non-commitment to even liberal democratic norms.
Equality and liberation cannot be achieved when there is no democracy in some of the most important areas of our society, such as our workplaces and the economy. We do not vote for our bosses, and try exercising your freedom of speech to express to your boss what you really think of them.
Toronto v. Notwithstanding
There is no Canadian exceptionalism here, despite the righteous indignation of Ford’s critics. The fundamental rights and freedoms protected by the Canadian constitution are far from absolute, as Ford has just demonstrated. Provincial and federal governments can, and frequently do, override those rights.
The very first clause of the Canadian Charter of Rights and Freedoms actually says that every right it protects can be breached if government can show that the breach is “demonstrably justified in a free and democratic society.” Courts have relied on this clause countless times to save government legislation that breaches rights. For example, in a case called Canadian Foundation for Children, Youth & the Law, the Supreme Court upheld a law that allows teachers and parents to hit children “by way of correction” on the basis that it was “demonstrably justified in a free and democratic society” even though the law deprives children of their right to security of the person.
The notwithstanding clause, however, is a nuclear option. It is there for governments to use for those rights breaches that are so egregious that not even the judicial system can find a way to excuse them. Found in section 33 of the Constitution Act, 1982, the clause allows governments to pass a law “notwithstanding” the fact that it breaches certain rights in the Charter. All they have to do is say in the legislation that they are invoking this clause, and it protects the law from any challenge for five years (following which the law has to be passed again). The notwithstanding clause can be used to override rights, such as the right to free expression and assembly, the right to life, liberty and security of the person and the right to be free from arbitrary detention.
The notwithstanding clause has very rarely been used. It was used in Québec to protect French language rights and to protest the imposition of the Charter on that province. It has never been used in Ontario. Given the essential nature of the rights that can be overridden, common thinking was that it was only to be invoked in crisis or emergency situations, and even then, only on a temporary basis. No such urgency existed to explain Ford’s threat to use it in the middle of a municipal election. But even his highly dubious claims that it was necessary to save money and make local government more effective could justify overriding democratic rights.
Not long after Ontario’s notwithstanding crisis dissipated, the new Québec government led by Coalition Avenir Québec (CAQ) threatened to use the notwithstanding clause to deny freedom of religion as one of its first orders of business. This threat, made by millionaire CAQ leader François Legault, was perhaps even more dangerous than the Ford example, directed as it was to whipping up xenophobia and racism towards religious minorities. We may indeed be facing governments in Ontario and Québec that are no longer committed to the illusion of rights and equality.
As shocking as this moment is, Ford and Legault are signaling an intent to make use of a power granted to them by the constitution. The reality is, the Canadian constitution – by design – makes it very easy to suspend our rights with no check on its use.
The People v. Doug Ford
There is then a deep-rooted historical tension between liberalism and democracy. Democracy does not necessarily follow from liberalism; nor, for that matter, does democracy need to be attached to liberalism. Doug Ford has within two short months of taking power illuminated that tension in a way not typically seen in Ontario in recent memory. Ford’s goal is, as he says, to open the province “for business” and he will not permit generally agreed upon liberal democratic norms to stand in the way of that agenda.
But these authoritarian impulses are not unique to Ford. He is part of a wider phenomenon in countries where liberal democracy has been the prevalent way through which ruling-class power has been organized for several decades. While far from being eclipsed, political movements are emerging, and in some jurisdictions exercising power, where the commitment to certain liberal democratic practices is notably weaker than in the past. Trump is one example of this, as are the fascist and right-wing authoritarian populists gaining electoral ground in Europe and Brazil.
We are four decades into the neoliberal project of aggressive austerity and imposition of market forces into peoples’ lives; and one decade removed from the biggest global financial crisis since the Great Depression. The contradictions of these developments are scorched across the political and economic landscape. Capitalist profitability was restored after the long economic downturn of the 1970s at the cost of escalating inequality, job insecurity, government cutbacks, land dispossession and climate catastrophe. And those same forces that led to the restoration of capitalist profitability in the 1980s and 90s at the same time unleashed new levels of economic volatility – seen in the intensification of boom-and-bust cycles – that create more pressure on business and political leaders to continue to attack our living standards, steamroll our ecologies and treat opposition to this agenda with deepening hostility and escalating levels of coercion.
Liberal democracy will not protect us from these assaults, nor will the courts.
It would be easy to feel hopeless. Just as the majority of Americans did not elect Trump, we need to remember that the majority of people did not elect Ford. He did not even win a majority to get the job as leader of his party. There is deep antipathy to Ford and what he represents. Others have argued forcefully and persuasively that the challenge we face is to mobilize that hostility, to make it impossible to govern in this way (see, for example, here, here and here). Ford’s ability to give handouts to corporations, slash and burn workers’ rights and precious services can be stopped if enough people step up and put their foot on the brake.
While Ford is moving quickly to impose his agenda, there is dissent. Support and participation in the Fight for $15 & Fairness has grown since Ford’s election. Teachers’ unions have publicly declared their willingness to defy Ford’s antiquated and reactionary approach to sex education. Forty thousand high school students staged the largest school walkout, in defiance of Ford’s curriculum policy, since the days of the last conservative government in Ontario in the mid-1990s. In Québec too, an anti-racist rally to protest the CAQ government drew thousands.
The majority are with us. We can and will build on this momentum to achieve democracy in the streets.
Jackie Esmonde is a lawyer and activist living in Toronto. Todd Gordon is an activist living in Toronto and author (with Jeffery Webber) of The Blood of Extraction: Canadian Imperialism in Latin America. Both are members of the Toronto New Socialists.