Democracy depends on norms as much as it does on laws. For example, we expect our public figures to tell the truth, even though there is no statute obliging them to be honest.
Canada has been lucky for generations to have politicians who largely abide by our democracy’s unwritten rules. But that run of luck only makes Ontario Premier Doug Ford’s recent behaviour stand out all the more.
In his battle to push through legislation cutting the size of Toronto City Council, Mr. Ford stayed within the law. Provinces have wide latitude over municipal governance. His government has a legislative majority and can pass the laws it sees fit. The notwithstanding clause, which Mr. Ford is invoking after a judge declared his law to be a violation of the Charter, is right there in the Constitution.
But the Premier has broken important norms along the way. First, he was not transparent about his plans. Modern politicians running for high office are supposed to release detailed platforms explaining what they will do in power. The PC platform was a threadbare document that included very little policy and made no mention of shrinking Toronto council. Yet, moving to do so was one of Mr. Ford’s first acts as Premier.
Yes, sometimes politicians have to go off script if conditions change. During a recession or after a terror act, they may bring in laws they didn’t campaign on. But no events have intervened to make reforming Toronto’s council more urgent. If that body is oversized and ineffective, as Mr. Ford argues, it was equally so before the writ drop.
Even worse is Mr. Ford’s claim that he had a mandate to act as he did, because he promised less government. That promise is a stock phrase of conservative politicians and does not imply any particular policy. To suggest Ontario voters consented in advance to knocking 22 seats off Toronto’s council because a plurality of them backed a small-government party is either dishonest or a misunderstanding of the contract between the government and the governed. Either way, it violates the norm that political parties be transparent about their major plans.
Having put forward the council bill, Mr. Ford ignored another norm when he attempted to discredit his opponents. Political attacks are par for the course. But, usually in Canada, criticism is directed at an adversary’s ideas or performance, not their motives or legitimacy – especially when coming from a major political leader.
Instead, the Premier has said city councillors only oppose the plan because it endangers their sinecures; that provincial NDP Leader Andrea Horwath opposes it because it threatens her “cronies” on city council; that citizen opposition comes from “special interest groups,” not “ordinary” people. He even suggested the judge who overturned the bill to cut Toronto council was biased against Progressive Conservatives.
We expect politicians to engage with the substance of criticism, even if their rebuttals are sharp or unfair. Mr. Ford could have said, “The Left likes council big because it likes government big; I want it small because small government is better.” That would have been a political argument. He chose instead to impugn his critics’ motives, suggesting without evidence that they were speaking or acting in bad faith.
This is dangerous talk. It makes politics not about competing ideas but about pure actors against corrupt actors. That sort of rhetoric is one way democracy breaks down; it makes partisans think only their side is legitimate.
Mr. Ford’s gravest breach of democratic norms was, of course, his use of the Charter’s notwithstanding clause. Here is a constitutional loophole, designed with the intention of ensuring the primacy of Parliament in grave and urgent matters, being wielded to push through a reform that no one asked for, whose alleged benefits are entirely notional and heavily disputed, and before all available appeals are exhausted.
Again, the Premier has the right to invoke the notwithstanding clause, and his supporters are delighted that he did. But he has ignored the convention that the clause only be used to defend critical initiatives after careful consultation.
Mr. Ford’s hurried and contentious use of his powers could come back to haunt him, his party and his supporters. The PCs will not always be in power. The next time they are in the minority, they may well find their rights are no longer protected by the norms of the past, thanks to the door the Premier has opened.