A Populist Has Exposed a Sinkhole in Canada’s Democracy

When the history of Western populism is written, the tale of Canada’s Brothers Ford may constitute its most bizarre chapter. Hailing from suburban Toronto, the wealthy businessmen Rob and Doug Ford embarked on a populist campaign years before such endeavors became a repeated feature of 21st-century politics. Rob found global infamy as the Toronto mayor caught on camera during a crack-smoking binge. Doug recently became the premier of Ontario, Canada’s richest and most populated province. For more than a decade, the Fords have pitted themselves against the establishment, promising to fight for “the little guy” by reducing the size of government, slashing taxes, and generally demolishing the status quo.

Now wielding serious power, Doug Ford has unleashed the specter of authoritarianism that has haunted Canadian democracy since the ratification of the Charter of Rights and Freedoms, which forms part of the constitution, 36 years ago. In mid-September, in order to defy an Ontario Superior Court ruling concerning the size of Toronto’s city council, Ford promised to invoke the mother of all loopholes: Section 33 of the charter, more commonly known as the “notwithstanding clause.” In order to appease recalcitrant provincial officials who insisted that the constitution ceded too much power to the judiciary, the charter’s architects included an override option. In short, Section 33 allows either parliament or provincial legislatures to temporarily nullify court judgments pertaining to certain constitutional rights.

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The extreme example goes something like this: Were the supreme court to legalize, say, child pornography on the grounds of free speech—a ruling that, while perhaps constitutionally sound, would be politically untenable and morally abhorrent—parliament or provincial legislatures could nuke the judgment by employing Section 33. It’s a tricky piece of political technology, a sinkhole in the middle of democracy, which is why it’s only ever been invoked on three occasions, all of which concerned situations that bore no serious or wider implications for the rule of law.

Ford’s “notwithstanding” crisis kicked off several months ago, smack in the middle of Toronto’s municipal-election campaign. Shortly after becoming the premier of Ontario last June, Ford introduced a bill that proposed reducing the size of Toronto’s city council from 47 seats to 25, throwing the elections into disarray. The city balked, the issue went before the Ontario Superior Court, and a justice ruled that Ford’s gambit violated Toronto voters’ right to freedom of expression.

The justice’s ruling, according to a number of legal interpretations, was badly botched. But instead of restricting his response to filing an appeal, Ford also went for the notwithstanding clause. “He’s the judge; I’m the premier,” Ford said. “I was elected; he was appointed.” The premier then introduced a revised bill that included the notwithstanding clause, meaning that the provincial legislature would be compelled to vote on whether or not to employ the loophole should an appeal fail. (Ford’s Progressive Conservative party enjoys a majority in the provincial legislature, and would likely have voted along party lines.) The premier’s actions have articulated long-standing conservative grievances with judicial overreach; Canadian right-wingers are over the moon.

Americans may find all this eminently familiar: Both Ford brothers have identified as Donald Trump fans, with Doug Ford recently insisting that, “I wouldn’t waver. The GOP is wavering; I wouldn’t waver.” And there is certainly much of The Donald in Ford’s political bluster (although given the Canadian brothers’ extensive legacy, there is a chicken-and-egg dilemma concerning who battle-tested this recent round of North American populism).

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Not so long ago, however, it was unthinkable that someone like Doug Ford would have the power to toy with fundamental issues of Canadian jurisprudence. His rise was a family affair, properly beginning in 2009, when Rob Ford, a long-serving Toronto city councillor, decided to run for mayor. Pundits laughed Ford off—The Globe and Mail once ran a column that described him as “fat” 17 times—yet he cobbled together a constituency that was far removed from the downtown-liberal feedback loop. In 1998, Toronto had undergone a process of amalgamation that fused the left-leaning city with the right-leaning suburbs, resulting in an ungainly, traffic-bound metropolis of mixed ideological outlook. Toronto swung right, then left, and then came Rob Ford—for whom there was no Canadian antecedent, and no political antidote.

During his campaign, he faced a constant stream of scandals that in mellower political epochs would have wiped him off the ballot. Media reports revealed that in 1999 he was arrested in Florida on a DUI charge, and that he was once asked to stop coaching a high-school football team after allegedly assaulting a player. There were vicious rows with his wife, and Ford made pronouncements such as the following: “Those Oriental people work like dogs … They’re slowly taking over.” And yet none of this made a negative impression on his base, the endlessly forgiving and by no means entirely white “Ford Nation.” (He and Doug Ford once hosted a TV talk show with the same name, which reportedly took five hours to record, eight hours to edit, and lasted one episode.)

The contest wasn’t even close—Rob Ford won in a landslide. During his first year in office, he was relentless. He privatized as many services as he could, refused to increase property taxes, and advocated for a subway line running through the suburbs. But his tenure quickly descended into a farce of previously unimaginable proportions. First came the crack-cocaine-smoking video, which was leaked in 2013 and promptly transformed Ford into an international late-night-TV staple. His links with the Toronto demimonde were exposed in a series of increasingly crazed media reports, and if he was considered to be unsuitable before the election, there was no political terminology to describe his standing post-Crackgate. Still, the mayor made a bid for reelection in 2014, pulling out midway through the campaign after citing ill health. Two years later, at just 46 years old, he died of cancer.

In the ultimate test of Ford Nation’s mettle, Doug Ford mounted a 2014 mayoral bid in his brother’s stead. The elder Ford had succeeded Rob as city councillor for their suburban ward, serving as a key lieutenant during Rob’s tenure. Nonetheless, he lost to a centrist named John Tory. In March 2018, after a sexual-misconduct scandal left Ontario’s Progressive Conservative party without a leader, Ford saw an opportunity. In a major upset, he took the party ticket.

If Doug was considered the good Ford, that was largely due to the nature of the competition. Unlike in his brother’s case, there was no samizdat footage of alcohol and drug abuse making the rounds. But in many respects, the stories swirling around Doug Ford were far more sinister.

In May 2013, The Globe and Mail published an investigation alleging that Ford had dealt drugs in the 1980s. (Ford denied the story, which was criticized for its reliance on anonymous sources, but was deemed fair by the Ontario Press Council.) It was later ruled that Ford had violated the city’s code of conduct after using his influence to benefit clients of the family’s company. Then came the usual grim palace controversies. Doug’s 21-year-old daughter, Krista, tweeted some unsolicited advice after a spate of sexual attacks wracked the city’s West End. “Stay alert, walk tall, carry mace, take self-defence classes & don’t dress like a whore,” she posted. The tweet precipitated another wave of international hand-wringing. During the by-then routine damage-control tour, Doug Ford poetically assured a talk-show host that “to be very blunt, we chewed her ass out from one end to the other.”

Ford shook off the controversies and concentrated on expanding Ford Nation into Ontario’s farthest crannies. During the provincial campaign, he promised to slash the budget, eradicate the cap-and-trade program for carbon emissions, and scale back regulations in order to lure manufacturing back to the province. He revised the dormant culture wars, deriding the sexual-education curriculum as too permissive, while vowing to allow the introduction of a bill demanding parental consent for abortions. In a true Fordian flourish, he instituted a buck-a-beer initiative, promising Ontario residents that he’d lower the minimum price of their suds from $1.25 to a dollar.

In other words, his campaign was the classic populist toggle from the sublimely important to the ridiculously inconsequential. In June, after winning a majority, Ford quickly began implementing his agenda. But in his attempts to nearly halve the size of Toronto’s city council, a highly localized issue with limited relevance to provincial issues, Ford sent ructions all the way through the Canadian political spectrum. Both Rob and Doug Ford had always insisted that Toronto is a spendthrift mess, run by effete elites out of touch with the needs of the suburban masses. (Their outlook was best articulated by their animus for bike lanes, which they characterized as “a war against the car.”) By invoking Section 33, Ford has in a stroke fulfilled a personal vendetta against Toronto elites, honored his brother’s legacy, and pulled a move that conservatives have been dreaming of for nearly four decades: Over a nonissue that can and should be dealt with in the courts, he’s put the judiciary on notice, threatening the balance that determines the rule of law.

As it happens, last Wednesday the Superior Court justice’s ruling was knocked down on appeal, which means Ford will get his way: Toronto’s city council will be reduced by 22 councillors. It also means his invocation of the notwithstanding clause was needless—an act of empty political theater that now serves as a precedent-setting strafing of the status quo.

Doug Ford could have waited for the appeals process to take its course. But like many in the latest wave of populists, he has steamrolled over political taboos, exposing the fact that the constitution is only as worthy as the intentions of those who swear to uphold it. The Canadian charter, like most such documents, was a miracle of compromise, negotiated into being by people with very different notions of what Canada should become. Section 33 was the price of implementation. By invoking it, and by insisting that he “will not shy away” from invoking it again, Ford has not enhanced democracy so much as overridden one of its fundamental checks and balances, paving the way for a tyranny of the majority. Next time, he may end up doing real damage. But at least the beer will be cheap.