Ford’s use of the notwithstanding clause: Sending a loud and clear message, to special interest groups, liberal lawyers, activist liberal judges, that his government’s legislation will not be high-jacked by elitist, undemocratic, unelected judges

Ford Strikes a Blow Finally Against Unelected Elitist Lawmaking Liberal Judges

By —— Bio and Archives--September 17, 2018

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Ford Strikes a Blow Finally Against Unelected Elitist Lawmaking Liberal Judges
Ontario Premier Doug Ford’s decision to invoke section 33 of the Canadian Charter of Rights and Freedoms, (Charter) the “notwithstanding clause”, is a declaration of war on out of control, unelected, unaccountable, rogue liberal activist judges who have misused, misapplied and distorted the Charter to make law on the fly, for their own ideological+ partisan personal purposes. This is Ford’s first shot across the bow of these liberal judicial pirates who have high-jacked our democratically elected (by the people) legislatures.  But it will not be his last during his term of office.


Exhibit 1: Dangerous decision of Justice Edward P. Belobaba

The recent very dangerous decision of Justice Edward P. Belobaba, preventing the Ontario government from exercising its constitutional right under Section 92(8) of the Constitution Act, 1867 to pass laws in relation to “Municipal Institutions in the Province”, including the terms of a municipal election, i.e. its ward boundaries.

In his decision, Justice Belobaba initially paid lip service to this decisive constitutional provincial legislative right, but then he proceeded through incredible judicial arrogance to amend the Charter on his own.

In effect, the judge created a whole new progressive Charter right, being the right of political candidates to determine their own ward boundaries under a dangerously expanded definition of the Charter’s section 2(b) freedom of expression.

Note section 2(b) of the Charter guarantees freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.

This section does not talk about freedom of political expression, nor the freedom and right of political candidates to choose and determine their own ward boundaries.

There are no Supreme Court decisions that even come close to suggesting political candidates can rely on section 2(b) in determining and establishing the ward boundaries in which they can campaign.

Simply, this judge has it—ass backwards.

The province has the constitutional right to determine ward boundaries and the political candidates must then operate in that framework.
The judge concludes that these political candidates’ new and ridiculously expanded Charter right of freedom of expression have been substantially interfered with because they the candidates have to amend their websites and pamphlets during the election, to take into account a greater ward from 66,000 voters to 111,000 voters. 

This conclusion is beyond reason! There are several weeks left in this absurdly six month long municipal campaign. Typically, candidates have to adapt to changing factors within minutes by amending websites and printed and online messaging.

Where is the problem?

This judge then spent 10 pages trying to shove the rights of Toronto’s voters in section 2(b), notwithstanding that according to he section 3 of the Charter, this Charter does not apply to municipal voters.


Note section 3 states that” Every citizen of Canada has the right to vote in an election of the members of the House of Commons or of a legislative assembly and to be qualified for membership therein.” The Charter is silent as to rights of voters in municipal elections.

But that does not stop this rogue out of control judge,  unbound by statute, Charter, or judicial precedent from creating another new Charter right, being the voter’s right of effective representation as part of this judge’s own expanded definition of section 2(b) freedom of expression.

This judge then predictably concludes that by the Ontario government increasing wards from 66,000 voters to 111,000 voters per ward, the voters have been denied their constitutional right of freedom of expression, that is, the voters’ freedom of effective representation. A new and very dangerous right that this out of control judge essentially produced over the week-end.

Note it takes years for provinces to collectively agree, if ever, to amend our Constitution and Charter, but this judge amended the Charter in a matter of hours! Frightening.

But then this judges shot himself in the foot by claiming that if the Ontario government had brought in this scheme over six months ago or six months later, then this constitutional right to effective representation would be kosher, that is constitutional.

Government’s legislation will not be high-jacked by such elitist, undemocratic, unelected and unaccountable judges

Which raises the obvious question, how can six months ago, the effective representation of 111,000 voters be constitutionally valid then, but now, a breach of the Charter?

Bottom line. This liberal judge out of pique and in support of many leftist political candidates who were facing the loss of political jobs in a pared down 25 ward city election, dangerously ignored the existing Charter and applicable Supreme Court rulings and in effect amended the Charter to come to this very very strange and disturbing decision.

As a result, Premier Ford had no choice but to trigger the section 33 notwithstanding clause, that is, re-issuing the said Bill 5 (Better Local Government Act) with a declaration that this Act will operate notwithstanding section 2 of the Charter, thus destroying Judge Belobaba’s horrible decision.

In addition, the importance of Ford’s use of the notwithstanding clause is to send a loud and clear message, to special interest groups, liberal lawyers and activist liberal judges, that his government’s legislation will not be high-jacked in the future by such elitist, undemocratic, unelected and unaccountable judges. He and his government were elected to represent the people. These activist judges were not. Their job is to interpret the law. Not make law and policy and certainly not amend the Constitution and the Charter on their own.



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Mitch Wolfe -- Bio and Archives | Comments

Mitch Wolfe, a graduate of Harvard University, is the author of “Trump: How He Captured The Trump White House”, which he wrote and had published prior to the election. (available on Amazon.com)

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