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Downey defends party's decision to invoke notwithstanding clause

'I really can’t see this as anything more than politically partisan,' says Georgian College political science professor of Ford's 'ham-fisted approach'
2020-02-27 Doug Downey crop RB
Barrie-Springwater-Oro-Medonte MPP Doug Downey is shown in a file photo from 2019 during a funding announcement in Innisfil. Raymond Bowe/BarrieToday

Attorney General Doug Downey says giving balance to third-party election spending laws is the reason his party is invoking the Constitution’s notwithstanding clause in the Ontario legislature this weekend.

“The advertising spend by third parties in Ontario is in the millions,” said Downey, MPP for Barrie-Springwater-Oro-Medonte. “It’s a significant presence in elections in Ontario and I think everybody knows that, they see it.”

The Ontario government reconvened the legislature this week to introduce legislation to enable it to invoke the notwithstanding clause. It gives provincial legislatures or Parliament the ability to override certain portions of the Canadian Charter of Rights and Freedoms for a five-year term.

In this case, it would deal with a court ruling on a third-party election financing law on Tuesday. The Ontario Superior Court struck down the Election Finances Act, tabled by the province this year, that would have limited third-party spending outside an election year.

“We need to make sure elections are allowed to be run with the voice of the average person, not big money coming from any direction and the court struck down some portions of a recently passed election law and left us with no rules at all, with regards to third-party spending,” said Downey.

Justice Edward Morgan ruled several sections of the law infringe on rights set out in the Constitution, and are “of no force or effect.” Morgan also ruled that it was unnecessary to amend the Election Finances Act to extend the restricted pre-election spending period to 12 months.

Premier Doug Ford’s Tory government had doubled the restricted pre-election spending period to 12 months, but kept the $600,000 limit on third-party political advertisement spending the same.

“Really the principle is to keep the big money out if it,” Downey said. “Look, they still have a voice. They can still spend $600,000 in the 12 months leading up and quite frankly they can spend $600,000 in a week, if they want, leading up to the writ period. So it’s not even spread out over that 12 months.”

But Geoffrey Booth, a political science teacher at Georgian College for more than 20 years, has a different take.

“I really can’t see this as anything more than politically partisan,” he said. “Where’s all that third party spending going to go, if it’s left to its own devices? It will be almost unanimously anti-Tory. You can bank on it.”

Booth also questions why, when parts of the Election Finances Act were declared unconstitutional, there wasn’t an appeal launched or a stay of the ruling requested so those sections could be changed to pass constitutional muster.

“The fact that he (Ford) resorted to this sort of ham-fisted approach shows his hand,” Booth said. “It’s choosing the nuclear option…to deal with something that is well within the capacity of the courts to adjudicate.

“Ultimately in a democracy you can’t have unelected judges making binding rulings on elected politicians,” he said. “If the politician makes the bad choice, it’s up to voters to decide whether or not he or she should stay in office.

“But it (the notwithstanding clause) was intended truly as the last resort. It seems so blatantly obvious and it unfortunately opens the door to any successive politician party to just pull that out as soon as something doesn’t go in its favour,” Booth said.

Downey noted the clause has been used by other provinces, Quebec and Saskatchewan.

“It’s really about the balance of the different branches of government, and ultimately it’s the will of the people, the people who are voted, democratically elected, who have the final say in some things,” he said. “It’s not universal, it’s very prescribed into which sections of the Charter they can be used and that’s why it’s there and I believe we’re using it appropriately.  

Education unions have argued that the change would restrict their free speech in the lead-up to the election - scheduled for June, 2022.

Pekka Reinio, president of the New Democratic Party’s Barrie-Innisfil Riding Association, said Ford is taking a page out of the American Republican Party playbook by overriding the Constitution to squash a court ruling on election advertising.

“This would shut down legitimate criticism such as families trying to hold the Doug Ford government accountable for the disaster in LTC (long-term care homes),” Reinio said. “I call it cheating. It’s like gerrymandering or voter suppression efforts, tactics used by the Republicans to steal elections.

“Meanwhile Doug Ford has doubled donation limits and holds regular $1,000 Zoom fundraisers for his influential, wealthy developer friends,” Reinio said. “He’s now using the notwithstanding clause to shut down legitimate advertising in order to silence his critics. This is an outright attack on democracy. Doug Ford is doing everything he can to cling to power.”

Reinio said Ford didn’t have to do it this way.

“Ford had other, better options. He could have appealed the decision, or started the process to write new legislation,” Reinio said. “Instead, he overrides the Charter of Rights and Freedoms.”

Owen Quann, Green Party president of the Barrie-Innisfil Constituency Association, said the province’s motives are transparent.

“Of course, I do believe that the Ford government is misusing their power,” he said. “In terms of election financing, the premier is simply trying to benefit larger parties who typically enjoy wealthier and more generous donors.

“In terms of the censorship of organizations and associations, the notwithstanding clause will impede Charter rights and freedoms and that is exactly what it will do in this case. Limiting organizations’ ability to engage in politics is a similar action taken by dictators and tyrants. This is a power grab from a premier who is losing trust and the confidence he once enjoyed.”

Stephen Chester-Bertelsen, provincial Liberal president for the Barrie-Innisfil riding, said he echoes the comments of party leader Steven Del Duca.

“Invoking the notwithstanding clause to overturn a court decision to protect our freedom of expression is utterly outrageous,” Chester-Bertelsen said. “It is an assault on our democracy and our courts.”

Downey said Bill 307 was introduced Thursday and now gets second reading. The Ontario legislature will meet starting tonight at midnight.

“It will go through the night for sure, unless debate collapses, for lack of people wanting to speak, but I doubt that will be the case,” Downey said. “So we’ll sit until tomorrow (Saturday) and in fact we’ll have a Question Period tomorrow.”

-- With files by The Canadian Press

Bob Bruton

About the Author: Bob Bruton

Bob Bruton is a full-time BarrieToday reporter who covers politics and city hall.
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