Law, Norms and Moral Authority

Taking a break from the merry of merry Christmas and thinking about the last year, I can’t help focusing on the extent to which law, norms and moral authority have been diminished in Ontario since June 2018 and the beginning of the Ford government. We often refer to governments or administrations by the name of the premier or prime minister (or presidents), but in this case, from all accounts, the term seems particularly apropos: this is a government run from the centre at the diktat of the premier. Nothing on the face of it makes this clear than the continued use by the premier of his Twitter handle, @fordnation, although he is now supposedly the premier of the entire province.

I do not intend to review all the events of the Ford administration since last June, merely to identify four actions that particularly have raised its lack of understanding of and commitment to the law and constitutional norms with the result that its moral authority has been undermined. Nor do we hear a squeak of opposition from members of the PC caucus to these actions (except for MPP Amanda Simard who left the PC caucus to sit as an independent to protest the government’s cuts to francophone services).

The first sign of the government’s approach was the immediate cutting of Toronto municipal council to 25 members plus the mayor, even though no mention of it had emerged during the election campaign. It was hard to avoid the conclusion that this was revenge for how Premier Ford believed he and his brother had been treated by members of Toronto council when Ford was a councillor and during his brother’s mayoralty. His brother had wanted to cut council and now Ford would ensure this was done. No one disputes that determining the size of municipal councils is within provincial jurisdiction; however, in doing this after the start of the municipal election, Ford showed his lack of respect for Toronto and the electoral process. It also raised constitutional issues of the rule of law and other grounds, the latter leading to a decision by the Superior Court that it was unconstitutional. The government was successful in obtaining a stay of the decision, although the substantive issues remain to be determined. The government may, in the event, have the substantive law on its side, but its action seriously undermines the rule of law, given its motivation, and the moral integrity of the government.

Ford’s threat to use the Charter’s notwithstanding clause to remove judicial scrutiny of the government’s action in reducing Toronto’s municipal council, the first for an Ontario premier, deserves its own comment. Ford’s readiness to use the override (which would not have applied to a challenge based on the constitutional principle of the rule of law) reflected either a lack of understanding or a complete disregard of the norms of constitutional practice, as well as, in his comments that he was elected and the judge appointed and that democracy means getting elected, a lack of understanding or appreciation for (or disregard of) the relationship between the government and the judiciary. It may not be relevant that the government’s counsel advised the Court of Appeal at the stay hearing that the government would not invoke the override if the Court of Appeal granted a stay of the Superior Court decision.

While again within its jurisdiction, the elimination of the Office of the Provincial Advocate for Children and Youth, the Environmental Commissioner and the Office of the French Language Services Commissioner of Ontario, ostensibly as a budget saving measure, raised questions about reducing independent oversight of government action in these areas. Although some of these services are to be included within the Ombudsman’s office, this decision illustrated, particularly in the case of the child and youth advocate, perhaps, the desire of the government to avoid scrutiny of its conduct.

Most recently, Ford’s cabinet named Ron Taverner as the new OPP commissioner, creating such a controversy that Taverner delayed his swearing in as commissioner. Issues such as the long friendship between the premier and Taverner, the fact that the qualifications for the position were changed after it was posted, allowing Taverner to apply, and the questioning of Taverner’s qualifications more generally, all raised concerns about the independence required of an OPP commissioner. The OPP would be responsible were there criminal probes of the government or members of the government, including the premier. There will be investigations into the selection of Taverner, but Ford’s approach to this matter is reflected in his failure to be in the legislature when the opposition parties raised questions about the appointment and his role in it when the legislature was recalled to address a strike at Ontario Hydro.

One may debate the merit of the decisions the Ford government has made since it took office, including exactly who “the people” are in whose interests Ford claims to be governing. However, whether self-vindication and self-interest are taking priority, whether the law is being followed and whether well-established norms of governance and the constitution are being flouted are serious matters related to the government’s constitutional and moral authority.