Government to invoke notwithstanding clause

TORONTO – The Ontario government will invoke the notwithstanding clause to restore changes to election finance law that a judge declared unconstitutional this week, a move critics quickly labelled as a power grab intended to sway next year’s provincial election.

Government House Leader Paul Calandra said legislators would be recalled from their summer break on Thursday so the government can introduce legislation on the matter.

“In the coming days, the government will be using every tool in the toolbox to protect our democracy,” he said.

A spokesman for Calandra confirmed the government would use the notwithstanding clause. The clause gives provincial legislatures or Parliament the ability to override certain portions of the charter for a five-year term.

Ontario Superior Court Justice Edward Morgan ruled on Tuesday that it was unnecessary to amend the Election Finances Act to extend the restricted pre-election spending period to 12 months. His ruling meant sections of the law involved in the court challenge were no longer in effect, with the next provincial election scheduled for June 2, 2022.

The 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. Morgan wrote that the six-month period achieved the same aims and found that the government did not provide any justification for doubling it.

A group of unions had argued that the changes would restrict their free speech in the lead-up to the election, while the attorney general had argued that the changes were necessary to protect democratic elections from outside influence.

Calandra echoed that sentiment in a statement on the government’s intentions on Wednesday. He said Morgan’s ruling would allow “wealthy elites, corporations and special interest groups operating through American-style super PACs” to control Ontario elections.

But critics said the planned use of the notwithstanding clause by Doug Ford’s government was undemocratic itself.

Michael Bryant, executive director of the Canadian Civil Liberties Association, which acted as an intervener in the case, said the move amounts to an abuse of power not seen under any previous Ontario government.

“Given the subject of the law, and its impact on the next provincial election, this is a cravenly self-interested abuse of this extraordinary power,” Bryant said.

“Changing the election rules to favour an incumbent government is unconstitutional, and undemocratic.”

Ford’s government threatened to use the notwithstanding clause in 2018 over plans to cut the number Toronto city council seats but did not proceed because of how the court process on the matter unfolded.

Unions representing elementary, secondary and Catholic school teachers, which were involved in the court challenge, called the government’s plan “an attack on democracy that should concern everyone.”

“By invoking this rarely used clause to bolster their position, it is clear the Progressive Conservatives of Ontario are gravely concerned that their critics’ voices will be heard, and that voters will be reminded of their repeated failures leading up to the June 2022 election,” the group said in a joint statement.

Opposition leaders said they would fight against the government’s measures.

NDP Leader Andrea Horwath said she was “shocked and disgusted” by the move, calling it a “desperate plan to override the rights of Ontarians” and silence Ford’s critics while people in the province are still struggling through a pandemic.

She said her team would meet on Wednesday afternoon to come up with a strategy.

“We don’t know what tools we might have, how long we might be able to keep up the fight, but we will fight for every minute of every day to try to prevent this from happening,” Horwath said.

Liberal Leader Steven Del Duca accused Ford of attacking civil liberties.

“Doug Ford will do anything to cling to power. Invoking the Notwithstanding Clause to overturn a court decision to protect our freedom of expression is outrageous,” he said in a statement. “Ontario Liberals won’t stand for this assault on democracy and our courts.”

Opposition leaders also criticized the government for recalling the legislature for such a purpose while the province is in mourning after four members of a Muslim family were killed Sunday in London, Ont.

“This is a misguided decision by the Premier and I ask him why now? Why is this your priority,” Green party Leader Mike Schreiner said in a statement.