“They shot a movie once, in my hometown…”
— The Hip, Blow at High Dough.
They shot a movie once, in Premier Doug Ford’s hometown. Its title was Run This Town, and it chronicled a chunk of Toronto’s Four Lost Years under his brother Rob Ford, whose out-of-control administration put the city on websites across the world for all the wrong reasons.
The sad mini-biopic was well received by critics, but suffered from an untimely March 2020 opening. Not only were theatres closing as Covid struck; Older Brother Doug was in the middle of Act One of his epic mishandling of Covid-19 masking, testing and vaccine distribution in Ontario.
Talk about an ironic merger of Dumb & Dumber stupidity.
Fast-forward to late fall of 2022, and a majority of Ontarians believe the Dictator-Premier is concocting a sequel, (working titles include Run This Province into the Ground or Blow at High D’oh), as he routinely invokes the Charter’s notwithstanding clause and ventures into unconstitutional lawmaking to advance his civil RICO regime.
Fed-up Ontarians want relief from the waves of ineptitude, moral turpitude and blatant graft wafting out of Queen’s Park in the wake of Big Brother Ford’s monstrous Bill 23, the More Homes Built Faster Act, 2022.
It is a blatant gift/grift to Greenbelt landowners and an unprecedented incursion into the decision-making powers of Toronto and Ottawa councillors. But Fordism’s “lassitude, mendacity and honed incompetence” (as coined by TorStar’s Heather Mallick) continues unabated.
At least 55% want Doug Ford to cease and desist, according to a recent popularity poll. Or they want Doug fired. At minimum, they want his dangerous legislation overturned.
The authority to do just that to a tinhorn premier is derived from section 90 of the Constitution Act, 1867 and is held by the Governor General acting on the advice of the Canadian federal cabinet.
Disallowance and reservation are historical constitutional powers that were implemented in several territories throughout the British Empire to delay or overrule legislation. These powers are considered politically obsolete, and in many jurisdictions have been formally abolished.
But not in Canada. Right there in black & white, section 90 (a preface to the crucial distribution of powers sections, 91 and 92) says this:
“The following Provisions of this Act respecting the Parliament of Canada, namely, — the Provisions relating to Appropriation and Tax Bills, the Recommendation of Money Votes, the Assent to Bills, the Disallowance of Acts, and the Signification of Pleasure on Bills reserved, — shall extend and apply to the Legislatures of the several Provinces …”
The premiers and Prime Minister Pierre Trudeau debated the Constitution for a dozen years, from the Victoria Conference in 1971 to Ottawa in 1982. They had plenty of opportunities to bury section 90. They did not.
The Americans cite their First, Second and Fifth Amendments of the ad nauseam. Ontarians should consider demanding section 90 disallowances on a loop, because Doug’s Bill 23 routinely drops statute bombs like this:
“Certain orders and approvals under the Environmental Assessment Act are terminated, and the projects are exempted from the Environmental Bill of Rights, 1993.”
The notoriously overreaching Act’s explanatory notes (the introductory statements that define the purpose of a bill) go on for more than 3,200 words, outlining in 10 schedules a renovation of Ontario municipal development law in the style of Doug’s jaw-dropping dismantling of the Toronto wards system in 2018:
- The schedules amend the City of Toronto Act, 2006 to give the Minister the authority to regulate the demolition and conversion of residential rental properties. A new subsection provides that exterior design is no longer a matter that is subject to site plan control;
- The Housing Minister will acquire more power under a repealed and re-enacted Conservation Authorities Act. The Minister will be empowered to freeze fees charged to developers. Development charges for housing services contained in a 1997 act are removed, benefiting developers while depriving municipalities of billions of dollars;
- The Municipal Act, 2001, now gives the minister authority to impose limits on municipal powers to control demolitions and conversions;
- The minister will have more sway on new home construction regulations. The process for identifying heritage buildings under the Heritage Act will be more centralized in the ministry and such designations will be voided to advance “provincial priorities” if deemed necessary;
- Ford’s own Ontario Land Tribunal Act, 2021, is amended to permit the Tribunal to more easily dismiss proceedings without a hearing;
- The Ontario Underground Infrastructure Notification System Act, 2012, is amended to place a ministry official on the non-for-profit board that controls the identification of underground excavations;
- The Planning Act will adopt the concept of “parcels of urban residential land,” and adds hurdles to challenging official plans, including imposing tighter deadlines on parties;
- The Supporting Growth and Housing in York and Durham Regions Act, 2022 is enacted to expedite the construction of the proposed York Region sewage works project and speed the extension of the sewage system to convey output to the Duffin Creek Water Pollution Control Plant, located only a mile north of Lake Ontario, in Pickering.
No wonder bewildered residents hope Prime Minister Trudeau takes the municipal reins from the Pink Palace Racketeer.
Provincial enactments have been disallowed 112 times by the Government of Canada since Confederation, with the last occurrence in 1943 invalidating Alberta’s legislation restricting land sales to Hutterites and other “enemy aliens.”
Dragging it out for Lucky 113 might become an agenda item in Ottawa.
The last Prime Minister to discuss the disallowance power was Pierre Trudeau in 1975; he stated that he would only use the disallowance power in “rare cases.”
In 1981, the Supremes said while disallowance “in law [is] still open,” the Court acknowledged that it had “fallen into disuse.”
Expanding further in 1986, the SCC stated that disuse arose because the “courts emerged as the ultimate umpires of the federal system.”
This would suggest that in modern Canada, it is the courts and not the federal government that should decide if a provincial law respects the Constitution.
Still, Justin Trudeau might want to play the section 90 card against Premier Danielle Smith’s proposed Alberta Sovereignty Within a United Canada Act, a nation-within-a-nation sham that might not pass scrutiny of the province’s own lieutenant governor.
Critics obsessed with constitutional consistency have posed this so-called gotcha inconsistency: How can Trudeau disallow Ford’s Bill 23 while condoning Québec’s Bill 21 sanctions on religious attire in the public service?
Surely imposing secularization in government office attire is less egregious than rendering elected big-city councillors powerless and running a Greenbelt graft racket out of Queen’s Park.
Constitutional experts say the courts should sort out these questions, and not the federal government.
But the call for grassroots courtroom legal pressure in the class action area faces some Ford-laid traps as well– as if Doug and his legal braintrust of Gerry Chipeur et al. knew what might be coming from his Charter-offending legislation.
For example, Ford’s wide-ranging omnibus Bill 161, the Smarter and Stronger Justice Act, adds new certification hurdles for class action lawsuits. Plaintiffs will have to show a judge that their common issues “predominate” over their individual issues, and that a class action is “superior” to other means of seeking justice.
The City of Toronto had sued Ford over his Bill 184, the Protecting Tenants and Strengthening Community Housing Act, 2020, aka the “Mass Eviction Bill”, contending it was another questionable Ford initiative that is unconstitutional and violates a tenant’s security of the person rights under section 7 of the Charter of Rights, but didn’t like its chances of success and withdrew its action.
The no-nonsense Ontario Health Coalition is also consulting with lawyers and calling emergency meetings with union leaders and health care organizations in order to fight Ford’s apparent efforts to privatize public hospitals.
The upshot is the 18% of eligible Ontario voters identifying as citizens of Ford Nation at the June 2, 2022 election have installed a dictator who will rule in their interest. Dishonest, opaque and unaccountable, Ford and crew cherry-pick nonsense datapoints, or fabricate them, project their own shortcomings on public sector employees and routinely contradict experts in any field.
Doug’s belligerence by statute is as persistent as it is comprehensive:
- Bill 257, the Supporting Broadband and Infrastructure Expansion Act, is another omnibus bill that amends the Planning Act to exempt Minister’s Zoning Orders from basic planning principles;
- July 2020, Ford’s Bill 197, the COVID-19 Economic Recovery Act, eliminates many environmental reviews; the government bill also retroactively exempted Ford from having to consult stakeholders about future changes to the Environmental Assessment Act;
- Bill 195, Reopening Ontario (A Flexible Response to COVID-19) Act, passed July 2020, broadly extends emergency powers and allows employers to bypass collective agreements, deny vacation and contract out jobs; Ford ejected PC MPP Belinda Karahalios from the PC caucus for voting against the bill;
- June 2021, Ford quietly disbanded independent oversight over correctional institutions by terminating community advisory boards intended to keep an eye on jails; “Ford doesn’t want people to know what jails are like,” charged a London lawyer.
Using the disallowance power to stop Ford is the nuclear option because it would outrage Quebec and the Prairies. But as long as it remains in the written text of the Constitution, there will be uncertainty about its legal effect.
It has been used 43 times in British Columbia, 28 times in Manitoba, 12 times in Alberta, 10 in Ontario, nine times in Nova Scotia, six in Quebec, three in Saskatchewan, once in New Brunswick.
Unifor, the largest public sector labour union in Canada, called on Trudeau to apply the nuclear option in the face of Ford’s Keeping Students in Class Act, in which the premier abused the notwithstanding clause, revoking free collective bargaining rights in the public sector:
“To protect the Charter rights of working people in Ontario and in other provinces, we urge you to seriously examine the use of the federal government’s section 90 power to disallow Bill 28.”
It has been said that “convention by disuse” has snuffed out section 90 as a federal cabinet option. But the establishment of a convention must be acknowledged by all parties concerned. As no Prime Minister has declared the disallowance power to be obsolete, it is fair to contend that it is still a legitimate part of Canada’s Constitution. It should be applied against Doug Ford’s noisy and difficult-to-control government.
