This morning, the Court of Appeals announced that they were restoring Bill 5, the Better Local Governance Act, into effect. This means that the Provincial Government will no longer need to use the “notwithstanding clause” at all; Bill 31 (the version containing the notwithstanding clause) is going to be dropped.

Why did the Court of Appeals strike down Justice Belobaba’s ruling?

They didn’t!

Huh? But I thought you said-

They didn’t make a ruling. They “issued a stay on the previous ruling”, meaning that Justice Belobaba’s decision is sort of on-hold until the Court of Appeals can properly examine the matter.

So why did they “stay” the ruling?

Justice Belobaba found Bill 5 to be unconstitutional because he believed that it violated Section 2(b) of the Canadian Charter of Rights and Freedoms, namely the part of it that guaranteed Freedom of Expression. He said that Bill 5 unfairly restricted the rights of candidates (in negating or confusing their campaigning) and of citizens (by their ability to offer a representative vote)

The Court of Appeals said that it was likely, on appeal, that they would find that candidates have enough time to make up for lost ground and get their message across. In other words, the burden placed on their expression was seen as negligible, or otherwise easy to overcome.

The more troubling thing is that the Court of Appeals argued that Section 3 of the Charter, about Democratic Rights, does NOT apply to Municipal Elections. We are guaranteed the right to vote and effective representation on the Federal and Provincial level, but no such guarantee seems to apply in regards to Municipal Elections.

That’s wild!

Wild indeed!

What happens from here?

Right now, 25 wards is the law of the land. However, the Court of Appeals might, in their more thorough hearing and investigation, find Bill 5 to be unconstitutional. They might do this according to the reasons that Belobaba found, or for other reasons. In this case, the election would go back to 47 wards.

On the other hand, they might go along with the reasoning they used when introducing the “stay”, or find other reasons, to strike down Justice Belobaba’s ruling and restore Bill 5 to effect.

And if that happens?

Bill 5 is in effect. Unless they later appeal to the highest court in Canada, the Supreme Court.

Yippee, Right?

Yippee, wrong! Not even counting the official Court of Appeals decision, which might take a while, Supreme Court cases usually take more than six months to a number of years to decide. Even then, there’s no guarantee that the Supreme Court won’t just agree with the Court of Appeals that Justice Belobaba done goofed up.

What happens to the election if Bill 5 is later struck down?

If the 25-ward election goes through, and the Court of Appeals or Supreme Court of Canada finds Bill 5 to later be unconstitutional, then a new election will have to be occur since the 25-ward election would be invalidated.

Couldn’t Ford try to pass the notwithstanding clause then, to avoid having a new municipal election?

I think so! This stuff hasn’t happened before!

What should I do about it?

Well, there’s not much we can do in the way of official channels.

But last time you had a big call to action to call my MPP!

That was when there was still a chance for our elected officials to do something. Daddy Trudeau has said he’s not using the power of disallowance to cancel it. Bill 5 has passed through the legislature. Now it’s all up to the courts; judges are non-partisan. We don’t really have sway over their decisions like we do over our MPPs.

So there’s nothing we can do?

All we can do is not shut up about it. Right now the law is saying that it was legally permissible for the PCs to pass Bill 5. That doesn’t mean it’s a good bill, it just means that it’s a legal bill.

Talk to your friends, family, and classmates. change people’s minds, campaign, complain. Make sure people don’t have a short memory when it comes to this topic. The Ontario PCs will try to say that it’s no big deal because they didn’t actually ever use the clause since Bill 31 was dropped. They only dropped Bill 31 because the courts happened to side with them when they granted the stay on Belobaba’s ruling. If the Court of Appeals had also found it to be unconstitutional, they’d certainly be using that clause.

Keep on the pressure, and hopefully we’ll have a government that cares about doing the right thing, rather than just doing the “thing that is literally allowed”. This wasn’t the first problematic decision made by this new government, and it certainly won’t be the last.

One thought on “Not-Notwithstanding?

  1. Also possible the next ruling will be “notwithstanding clause’ proof. It is like playing monopoly with a rule that the person with the most money can decide if a property can be sold, bought, rent paid or if they should go to jail. Dave 

    From: ZAMA To: Sent: Wednesday, September 19, 2018 11:22 AM Subject: [New post] Not-Notwithstanding? #yiv4181874181 a:hover {color:red;}#yiv4181874181 a {text-decoration:none;color:#0088cc;}#yiv4181874181 a.yiv4181874181primaryactionlink:link, #yiv4181874181 a.yiv4181874181primaryactionlink:visited {background-color:#2585B2;color:#fff;}#yiv4181874181 a.yiv4181874181primaryactionlink:hover, #yiv4181874181 a.yiv4181874181primaryactionlink:active {background-color:#11729E;color:#fff;}#yiv4181874181 | ZamaBlog posted: “This morning, the Court of Appeals announced that they were restoring Bill 5, the Better Local Governance Act, into effect. This means that the Provincial Government will no longer need to use the “notwithstanding clause” at all; Bill 31 (the version cont” | |


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