Notwithstanding clause legislation poised to pass Monday following contentious weekend sitting

Notwithstanding clause legislation poised to pass Monday following contentious weekend sitting

By David Hains, Sneh Duggal, Paula Tran and June Jang

Queen's Park is poised to pass historic legislation that would invoke the notwithstanding clause for the first time in Ontario's history, overriding a court ruling in order to place limits on outside political groups.

The weekend sitting saw pitched rhetoric to match the unique circumstances, which included a rare overnight sitting of the legislature.

"They don't want to respect the courts, nor do they want to respect the people of this province," said NDP co-deputy leader Sara Singh.

Government House Leader Paul Calandra used Progressive Conservative debate time to roast the NDP at length as being politically "irrelevant" and failing to grasp how parliamentary procedure works. Secondarily, he argued that the PCs were supporting the integrity of the election process.

"I never knew the opposition was so against the charter," said Calandra, employing an argument that invoking the notwithstanding clause, which effectively vetoes the rights enshrined in various sections of the charter, cannot undermine the document because it is also part of it.

The legislature was recalled following an Ontario Superior Court ruling issued last Tuesday that found the government's new limits on third-party political spending lacked "explanation or justification." The Ford government doubled from six months to 12 months the pre-writ period in which a $600,000 limit is placed on expenditures. The court took extensive issue with the government's case, finding it didn't provide the rationale for why the changes were made and that arguments from counsel were contradictory. Rather than seeking a stay or appeal, or tabling legislation that seeks to ameliorate the court's concerns, the government chose to invoke the notwithstanding clause, which they previously threatened to use in order to cut the size of Toronto's council in half.

Myriad stakeholders, including legal experts, academics, civil liberties groups and all opposition parties, condemned Ontario's use of the notwithstanding clause, which was described by independent MPP Roman Baber, a former PC member, and the NDP as the "nuclear option" that puts the government above the law.

Despite protestations that the government was invoking the notwithstanding clause in order to stifle political opposition, the PCs moved to time allocate the notwithstanding bill, a move that limited debate and bypassed the committee process. The original legislation was also time allocated.

The bill could pass on Monday, less than one week after these events were set in motion. The house will resume sitting at 10:15 a.m.

A weekend debate invites sharp rebukes

Despite efforts by Speaker Ted Arnott, it was not a pleasant weekend for MPPs while much of Ontario was enjoying step one in the province's reopening plan.

"Good morning, again," he said, greeting MPPs in the house at 10:15 a.m. on Saturday morning as the legislature resumed after an overnight sitting.

As question period kicked off, Premier Doug Ford and NDP Andrea Horwath were both absent. Ford's office noted he was at Queen's Park from midnight until 7 a.m. on Saturday and "was in the legislature for several hours throughout the night." Horwath was speaking at the NDP’s provincial council on Saturday morning, at what her party said was a pre-scheduled event.

That overnight sitting saw plenty of finger-pointing and attacks, both personal and ones grounded in democratic principles.

“It is an insult to democracy to have a bill run through over the weekend with no chance to go through the committee," said NDP MPP Jessica Bell shortly after midnight on Saturday morning, establishing a theme for the weekend.

"We are ramming through a piece of legislation and not respecting the democratic process and that is a shame. What worries me is, it is an abuse of power because it overrides the court decision,” she said.

Calandra said the PCs "fundamentally disagree" with the NDP, contending that "there would be no rules whatsoever" on third-party advertising if New Democrats had their way. But he then claimed the NDP "believe ... that the maximum amount of time [expenses should be limited] should be three months."

Part of the underlying issue is that significant spending by third-party education and labour groups traditionally opposes the Tories. And while there are PC-aligned third-party groups, like Ontario Proud, their spending total is dwarfed by the likes of Working Families, a coalition of like-minded unions that pool their money together to buy prime-time advertising. While the previous Liberal government enacted limits on these groups in the six-month period in advance of the writ, the PCs doubled that time frame to 12 months without a corresponding increase in spending limits.

The NDP tried to stall the legislation, but with limited tools at their disposal, it was a foregone conclusion that the bill would come for a final vote on Monday. Despite this, the party put forward various motions to highlight the government's priorities, seeing the PCs vote down items on a lack of affordable housing, a rise in hate crimes, the plights of small businesses, the disastrous vaccination rollouts, a need for a safe return to school plan in the fall, and issues affecting the lives of Indigenous people.

NDP MPP Sol Mamakwa expressed his frustration over the fact that the house was meeting to discuss election rules when there were other important issues they could and should be debating instead. He spoke about the ongoing COVID crisis that is taking place in Indigenous communities due to overcrowding in homes, which prevents people from adhering to public health measures. The rate of reported active COVID cases on a reserve is nearly double the rate for the general Canadian population, according to stats from the Government of Canada.

“I know this government calls themselves defender(s) of democracy. Yet the action shows an absolute opposite, of trampling on individuals’ inherent rights. Sometimes I bring issues about health, child welfare, overcrowding and water, which I wish we were talking about. This government shouldn’t continue to play ping-pong on the health of people in Kiiwetinoong,” he said.

Green Leader Mike Schreiner concurred when he spoke to the press later in the day. "It's outrageous that in one of the most tragic weeks in Ontario’s history after the horrific Islamophobic event in London, at a time when we’re still trying to get through a global pandemic and the economic crisis ensuing, at a time when our children are not safely learning in their classrooms, we are at Queen’s Park debating fighting against the premier’s use of the notwithstanding clause to violate your charter rights," he said. "The government's priorities are misguided, we need to be working for people right now, not for political self-interest."

The debate continued later Saturday when the second session of the day kicked off at 10:15 a.m.

NDP MPP Peggy Sattler turned to the tragic killing of a Muslim family in London last weekend, asking what the government would do to end Islamophobia. Calandra said the government will work with its federal and municipal partners and police forces across the province, going on to note that it's not a partisan issue.

"This is a something that is a Legislative Assembly of Ontario issue, this is an issue that is important to all of us and we will all have to work together to get it right," he said.

Sattler then asked the government to restore funding she said was cut from the anti-racism directorate, with Solicitor General Sylvia Jones denying any cut in funding and noting that the directorate is doing good work.

NDP education critic Marit Stiles and Schreiner focused on schools for their questions, with the Green Party leader saying no one was calling his office requesting that the government use the notwithstanding clause, but rather people are asking for investments to reopen schools.

He asked about what he called a lack of a "comprehensive plan" to reopen schools safely in September.

"This government can do both, we can protect our democracy while investing in quality public education," said Education Minister Stephen Lecce, noting a $1.6 billion allocation for COVID-19-related measures for the next school year, though funding for the second half of it is dependent on the public health situation at the time.

Singh, the NDP's co-deputy leader, went on to invoke what she referred to as millennial-speak, with Calandra reciprocating the gesture.

"It’s pretty suspect that this government would rather use the nuclear option on the constitution than do what’s right and fix working conditions for personal support workers," she said.

"I think the only thing that is suspect ...," started Calandra, going on to criticize the opposition for opposing the government's plans for the sector.

The PC government argued that the bill was necessary to protect the “essential voices of Ontarians.” Calandra said the bill was designed to protect provincial elections from American-style big-money political influence. Attorney General Doug Downey, who introduced the legislation, said the bill will protect democracy in Ontario elections and meaningfully engage with voters while stopping collusion from third party contributors.

“Ontario voters deserve to make decisions based on balanced political conversation that they can find accessible ways to participate in. They should not be blocked because it is dominated by unregulated, unaccountable pop-up organizations backed by big money,” said Downey.

Downey also questioned the opposition parties’ stance on third-party contributors spending large amounts of money during elections. He asked why the parties are not willing to support the bill despite previous support for similar measures.

“We’ve seen members of the Liberal and NDP speak strongly in support of limits to influence of big-money political action groups and third-party special interests on our elections to protect the voice of the individual by ensuring that we’re reasonable on big-spending from third parties and special interest groups,” said Downey.

On the other hand, the PCs have expanded the influence of individual donations in the political process. They have twice increased the maximum allowable political donation, including in Bill 254, which stood at $1,200 when they formed government in 2018 and is now at $3,300.

The PCs have proved prolific big-money fundraisers and even at the peak of the third wave the premier and cabinet minister were holding one-hour Zoom fundraisers with tickets sometimes going for $1,000. The premier temporarily stopped this practice following a QP Briefing report that pointed it out, but it has since resumed.


David Hains

QP Briefing Reporter

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