Ford use of the notwithstanding clause for election law was never about protecting democracy

Critics suspected the government meant to muzzle dissent, and now we have proof

Michael Spratt

Be warned, in Doug Ford’s Ontario, public disagreement with the government can be considered, at least by the government, illegal political advertising.

Last year, Ford announced plans to build two new jails. Many, including myself, saw this as a massive mistake that would harm local communities, infringe human rights, and divert money away from necessary social programs.

You see, Ontario can’t even humanely run the jails currently in operation. A Superior Court Judge found that conditions at the Toronto South Detention Centre were “inhumane and fail to comport with basic standards of human decency” and that those conditions were a “deliberate policy choice to treat offenders in an inhumane fashion … rather than devote appropriate resources to the operation of the institution.”

Ford did not even have the decency to consult the local communities about where to build new jails. The mayor of Kemptville, the planned location of a new 375-bed facility, said that the provincial government had only advised the municipality of the plan to build a new jail in their backyard the same week Ford announced the project.

So, it should be no surprise that the local Kempsville community came together to push back against Ford’s folly. The Coalition Against the Proposed Prison and the Jail Opposition Group have been particularly vocal in their opposition.

It turns out that the government does not like grassroots opposition, and they think this type of dissent is against the law.

Last week, it was revealed that the Ford government used a controversial new election advertising law to muzzle the two community organizations.

On September 15, Steve Clark, Kemptville’s MPP and Ford’s minister of municipal affairs and housing, wrote to Elections Ontario complaining that CAAP and JOG violated Ontario’s election laws and engaged in “unlawful political advertising.”

It was a transparent, strong-arm tactic designed to intimidate the public, stifle free expression, and stamp dissent. In other words, precisely what critics feared when the Ford government used the notwithstanding clause to override the Charter and ram through their election bill last June.

Since 2007, Ontario has had rules limiting third-party political advertising. In 2017 Ontario’s restrictions on third-party advertising rules were amended, doubling the 6-month ban on third-party advertising before an election.

In June 2021, the Ontario Superior Court struck down parts of the 2017 election law, including the new 12-month advertising blackout, finding it violated the Charter and imposed an undue and unreasonable restriction on the right to freedom of expression.

Days after that court decision, in the middle of the third wave of the pandemic, after refusing emergency debates on long-term care deaths and worsening public health conditions, Ford recalled the legislature to ram through the Protecting Elections and Defending Democracy Act.

Ontario’s Attorney General, Doug Downey, claimed that the unconstitutional law, which restored the 12-month blackout, was necessary to restore responsible electoral guardrails to ensure “wealthy elites,” “special interest groups,” and “corporations” couldn’t drown out the voices of everyday folks.

Despite raising individual political donations limits from $1,200 to almost $10,000, Downey consistently claimed the bill was all about limiting big money in politics.

And then Downey dropped the hammer — not only would the government move closure on the bill, limiting debate, but they would use the notwithstanding clause to insulate the law from Charter scrutiny for the first time in Ontario’s history.

The opposition New Democrats warned that the new law violated the Charter and would be used for political gain.

During the midnight debate on the bill, NDP opposition critic for attorney general Sara Singh warned the legislature, “I think many of us are very concerned with what the government is seeking to do here.” Sing continued, “Under the guise of helping ensure that the democratic process is respected and that freedom of speech is respected, the government is really taking advantage and weaponizing the ‘notwithstanding’ clause for their own political purpose and gain.”

She was right.

Luckily, Elections Ontario dismissed Clark’s complaints against the Kemptville community groups — they were not engaged in political advertising; they just had an opinion.

And, of course, they weren’t. The anti-jail groups are not associated with any political party, they don’t tell people who to vote for, and they don’t mention the election. Their signs read “NO PRISONS” — a message no more political than the dozens of issue-specific signs in every community.

As Colleen Lynas, head of CAPP, said, “We are a small group, most of us retired. We have no money — we are simply a group of people who believe in the importance of engaging in the public square.”

But, Doug Ford does not want to listen to people engaging in the public square, and he views disagreement not only as a headache but an unlawful political attack.

Ford’s unconstitutional election law was never about protecting democracy. It was always about protecting Ford.

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