Marie Henein, probably now the most famous and prominent defence attorney in Canada, has written an open letter to Premier Ford in The Globe and Mail which corroborates the argument that I put forward here on Parliamentum yesterday: the Notwithstanding Clause has come to seen as unconstitutional in the British sense of the word despite being part of the Canadian Charter of Rights of Freedoms.
In a gleefully patronizing tone, Henein admonishes Ford for not understanding Canada’s system of government and accuses him of having supplanted the rule of law with a form of personal rule worthy of a Latin American caudillo, eastern European autocrat, or a Stuart king.
The constitution cannot be unconstitutional. It follows therefore that one part of the constitution cannot be used to strike down or nullify another part of the constitution. This tautology, fittingly, sounds very obvious and simple – yet it still bears repeating with respect to the Constitution of Canada, a confounding Cherub (like that in the Book of Ezekiel) composed of disparate, even contradictory, parts that ought not fit together yet must fit together and reconcile with one another.
On 10 September 2018, Justice Belobaba of the Ontario Superior Court of Justice struck down the provisions of the Better Local Government Act reducing the size of Toronto City Council by half and using the federal and provincial electoral districts as the basis for the City of Toronto’s new wards, as unconstitutional; Premier Ford, in turn, announced that the government will introduce a bill re-acting these provisions under the Notwithstanding Clause. This recent controversy has brought to the fore an interesting and perhaps unique feature of Canadian constitutionalism: all parts of the Constitution of Canada are constitutional, but some parts are more constitutional than others.
Robin Sears, a New Democrat now of the Earnscliffe Strategy Group and a look-alike of Franklin D. Roosevelt, has joined with Susan Delacourt, Chantal Hebert, and Andrew Coyne in musing about or overtly calling for an early dissolution and snap election. It’s telling that Sears doesn’t even mention the fixed-date election law at all in his column; he presumes its constitutional and political irrelevance — and quite reasonably so.
Canadian columnists have come a long way in ten years.
Journalists who cover politics often suffer from crippling boredom in the summer months when Parliament sits not and no longer provides them with a steady stream of headline fodder.
Susan Delacourt and Andrew Coyne in June 2018 started raising the spectre of an early dissolution, and Chantal Hebert in August 2018 started suggesting that Prime Minister Trudeau ignore the fixed-date election provision contained in the Canada Elections Act, which schedules the next federal general election for October 2019, and instead opt for an early election this year. Not to be outdone, Susan Delacourt wrote a second column on the same subject in August 2018.
It is difficult to imagine the parliamentary press gallery having encouraged Prime Minister Harper to opt for an early election, when in 2008, several reporters promoted Duff Conacher’s and Errol Mendes’s assertion that “Harper broke his own law!” when he obtained an early dissolution ten years ago. (Though a few journalists at the time did correctly point out that the fixed-date election law kept the established constitutional positions of the Governor General and Prime Minister intact). But things have changed over the last decade to the point where at least three reporters actively encourage that Trudeau obtain an early dissolution purely out of political expediency.
Nevertheless, Delacourt, Coyne, and Hebert do raise a pertinent question: when is a snap election just and good? I will consider this below.
I took this photo on a trip to Quebec City in 2008
Judging by recent media reports, the answer depends upon the length of the writ and not necessarily on the date of the election itself, as the case of Quebec in 2018 and Canada in 2015 demonstrate.