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Lagassé and MacDonnell: As Doug Ford has learned, constitutional hardball doesn’t always pay off

Our legal Constitution exists alongside a political constitution, with its own rules and expectations. Just because you can legally do something doesn’t mean that you can or should, politically.

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Premier Doug Ford learned an important lesson this week: Playing constitutional hardball can embolden your opponents and leave you politically weakened.

Coined by American legal scholar Mark Tushnet, the term “constitutional hardball” refers to the use of laws or institutions in ways that are technically permissible, but that violate political norms. The Ford government’s decision to impose a contract on educational support workers, and to use the notwithstanding clause to prevent them from striking, is an example of hardballing. The premier hoped that his tactics would compel the Canadian Union of Public Employees (CUPE) to abandon its strike and accept a new contract on the government’s terms. Instead, Ford galvanized the labour movement and has arguably strengthened workers’ constitutional right to strike.

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Ford’s approach backfired, leaving him in a position where the only option was to retreat. Future governments will surely think twice before using the notwithstanding clause to quash strikes amidst labour negotiations.

The federal government should draw lessons from Ford’s experience as well. With Quebec and Ontario both using the notwithstanding clause to pre-emptively circumvent Charter challenges to legislation, commentators have called on Prime Minister Justin Trudeau to revive the federal power to disallow provincial laws. Disallowance has also been suggested as a means of blocking Alberta Premier Danielle Smith’s proposed Alberta Sovereignty Act.

However, using the disallowance power would itself be a form of constitutional hardball. Yes, the power still exists in the Constitution, but its exercise would violate strongly entrenched norms regarding the nature of Canadian federalism. Just as Ford faced a wall of union leaders with his use of the notwithstanding clause, Trudeau would likely be confronted with 10 defiant premiers if he disallowed a provincial law.

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The risks involved in playing hardball offer us another lesson: Our legal Constitution co-exists alongside a political constitution, with its own set of rules and expectations. Just because you can legally do something doesn’t mean that you can or should, politically. In Ford’s case, invoking the notwithstanding clause rashly, without proper debate, and without a prior judicial decision holding legislation to be unconstitutional has stoked the view that the very existence of the clause represents a flaw in our constitutional order.

It also gives credence to the view that politicians can’t be trusted to take constitutional rights seriously. Had Ford been more measured and treated the clause as a measure of last resort, he would have been on firm legal and political constitutional ground. Indeed, with a fresh majority in the Ontario legislature, Ford could have argued for a politically legitimate use of the clause if negotiations broke down completely and schools were shut for an extended period of time.

This is a point that critics of the notwithstanding clause must recognize as well. The clause exists for legitimate reasons, and it is not going anywhere. Seeking court rulings that neuter the clause would galvanize critics of the judiciary who see it as a means of balancing the powers of the legislative and judicial branches. Given that the Supreme Court of Canada’s first and most sustained discussion of the clause held that it could invoked at any time so long as the proper procedure is followed, trying to make it a dead letter won’t work.

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Those who want to restrain the use of the clause should seek to better refine the political constitutional norms that surround its use and meaning. Ford’s ill-advised use of the clause offers an opportunity to start a better discussion of what these norms should be.

Notwithstanding the notwithstanding clause, it’s important to note that playing constitutional hardball may occasionally pay off. The same day that Ford backed down on using the clause, the Federal Court held that he could rely on parliamentary privilege to avoid appearing before the commission examining the invocation of the Emergencies Act. Ford’s abuse of his legislative privileges, and other misuses of these privileges by parliamentarians and parliamentary committees, have led to calls to curtail these protections.

As with the notwithstanding clause, however, parliamentary privilege exists for good reason, notably to ensure that legislators can fulfil their constitutional functions. As in the context of the notwithstanding clause, the best way to reduce abuses of these privileges isn’t to alter constitutional law, but to strengthen the norms of the political constitution. If this week has demonstrated anything, it’s that a groundswell of political opposition can be more effective than technical legal arguments advanced in court.

Philippe Lagassé is a political scientist and Barton Chair at the Norman Paterson School of International Affairs, Carleton University. Vanessa MacDonnell is a law professor and Co-Director of the uOttawa Public Law Centre.

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