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.
By Emma Paling
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.
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"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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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."
