Ford Wins Big. Belobaba Decision an Error in Law: Court of Appeals.

Vincent J. Curtis

19 Sept 3028

The Ford government won big at the Ontario Court of Appeals over the adverse Belobaba decision.  The opinion of the court of appeal closely tracks the argument I gave last week.  They said in essence that maybe Bill 5 sucks, but it doesn’t violate constitutional rights to freedom of expression. They remarked in essence that incumbency is not constitutionally guaranteed.  The panel did not address the issue of standing.

It was a mistake, however, by the Ford government to seek a stay of judgement from the Ontario court of appeals in respect of Bill 5 - while simultaneously proceeding with Bill 31 (essentially Bill 5 preceded by the Notwithstanding Clause.)  It is corrupting both of the legislative process and of the judiciary to have done so.  The proper course of action would have been to pass Bill 31, then proceed with getting the Belobaba decision overturned.

By essentially bargaining with the judiciary over legislation, it creates the false impression that the judiciary somehow have a role in the legislative process.  They do not and must not.  By the court of appeals granting a stay while the promise of halting the use of the Notwithstanding Clause was offered, it makes the judiciary look weak. 

If Bill 31 were passed and the decision against Bill 5 were eventually overturned, then both Bills would be in force until after five years, Bill 31 would lapse.  Nothing practical would change.  If the judiciary withal upheld the Belobaba decision, then the court of appeals wouldn’t be complicit in a four year long violation of the fundamental right to freedom of expression of Toronto voters.

But a stay was granted, and the panel cast grave doubts upon the Belobaba decision, saying it likely erred in law and would likely be overturned on appeal.  There are a lot of politicians and opinion writers who owe Doug Ford and Caroline Mulroney an apology for their immoderate criticism.   Ford and Mulroney were right, and Belobaba was wrong.

What is disturbing is that none of the critics looked at the Belobaba decision itself and asked if it made sense, or not.  But they didn't, because they were part of the #Resistance and all they were looking for was a tong to hammer Ford with.  They talked about "democracy" but the Charter and the Judiciary are limitations on straight majority-rule democracy.  They didn't think about the supremacy of parliament in the British-Canadian system and why the Notwithstanding Clause was put into the Charter.  (Hint: There wouldn't have been a Charter and a patriated constitution in 1982 without a Notwithstanding Clause.)  In short, these leaders of opinion were practically criminally ignorant of the constitution, and they didn't know what they were talking about.

Alls well that ends well.

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