OCLA statement on the notwithstanding clause controversy

Doug Ford, Harper gerrymandering, activist judgements, media blind spots, and freedom of expression

Ontario Civil Liberties Association statement on the notwithstanding clause controversy

(Ottawa, September 12, 2018) — The Ontario Civil Liberties Association (OCLA) has expertise in the law of freedom of expression, and in the civil rights of citizens. We are compelled to express our observations of the current notwithstanding clause controversy in Ontario.

The timeline of the controversy is as follows:

  • Toronto municipal election period started May 1, 2018
  • Election day is October 22, 2018
  • Ontario government announced its intention to reduce the number of ridings at the end of July
  • Bill-5 received Royal Assent on August 14, 2018
  • Ridings were reduced in number from 47 to 25, to match the federal election ridings for Toronto
  • Candidates were instructed to transfer their registrations to the new ridings
  • Following a constitutional challenge done on short notice, the impugned provisions of Bill-5 were judicially declared of no force or effect on September 10, 2018
  • The judge applied his ruling immediately and forced the riding structure back to the original 47 ridings, effective September 10, 2018
  • Premier Ford announced he would invoke the notwithstanding clause to override the judge’s ruling September 10, 2018

Judge Belobaba’s ruling is available on CanLII.  It is extraordinary for a court to strike down a statute passed by the legislature, more so on short notice and with immediate implementation without careful analysis of the consequences for a live electoral process.

Therefore, it has surprised us that the media has focused almost entirely on the potential use of the notwithstanding clause rather than critically examine the judge’s reasons for striking down the statute in such a dramatic way.

The judge’s reasons for invalidating Bill-5 are:

[20] As I explain in more detail below, the Impugned Provisions breach [freedom of expression rights] s. 2(b) of the Charter in two ways: (i) because the Bill was enacted in the middle of an ongoing election campaign, it breached the municipal candidate’s freedom of expression and (ii) because Bill 5 almost doubled the population size of City wards from an average of 61,000 to an average of 111,000, it breached the municipal voter’s right to cast a vote that can result in effective representation.

In our examination of the ruling, we fail to see how the candidate’s freedom of expression rights were violated by the restructuring of the ridings, which at the time of the ruling had already been put in place.

The judge was required to identify evidence that expression was actually prevented or impeded but he did not. The judge did not describe one iota of evidence that any candidate’s expression about anything was impeded by Bill-5. Nor did the judge provide a theoretical example of how any specific expression would be prevented or impeded by Bill-5.

Communication materials (flyers) made inaccurate by a changing law is not a violation of free expression rights. It does not prevent expression. It is a cost of acting in a democratic society with changing laws.

In the judge’s second reason, he takes voting to be expression, which is obvious. However, the judge has the problem that voters are not prevented from voting, or from any expression whatsoever, by Bill-5. The judge reasons that voting means “casting a vote that can result in effective representation”, and posits that a riding with a population 110,000 rather than 61,000 (on average) cannot provide the voter with “effective representation”.

Do we need to explain that the judge is on thin ice here? This leads us to judges striking down laws that do not provide “effective representation”, on the basis of committee or expert reports claiming a deficiency in “effective representation”.

Again the judge was required to identify case-specific evidence that a voter’s free expression rights were violated or impeded by Bill-5. The onus is on the party wishing to strike down a statute to prove that a Charter right was violated. Not one iota of evidence in this regard is presented in the ruling, and the link to the freedom of expression right is too distant to have any useful meaning.

The ruling is an activist ruling that disregards binding law regarding constitutional challenges of statutes. The judge mixes s. 1 analysis (impact on democracy) with the threshold question of whether a Charter right is violated by the effect of the impugned law.

These are the first questions that should have been addressed by our media watchdogs.  Does the ruling make any sense?

Faced with a highly disruptive ruling that makes no sense, we fail to see why the Premier would not invoke the notwithstanding clause. One could argue that it is the Premier’s duty to do so in such circumstances.

Another aspect of this controversy which would merit more attention is the lack of explicit media criticism of gerrymandering.  If there is an authentic concern for democracy, then strong ethical rules or oversight should impede this disgraceful practice perfected by all the parties that have held power.

After all, Ford, via Bill-5, has imposed the 2013 Harper gerrymandering onto the City of Toronto. The Harper ridings structure persists, Ford is allowed to do what he did, the change may well improve “democracy” and have all the claimed benefits, but we have no guarantee because there are no independent studies, real watchdogs, or strong ethics rules. On these points, the independent organization Democracy Watch has been an objective Canadian advocate for decades, to no avail.

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BLG lawyer asks LPAT to consider denying full right to appeal urban development decision

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In today’s latest development of the case of Ottawa homeowner appellant Dr. Hadi Salmasian [see: “OCLA supports opponents of Ontario’s vague and unfair planning law”], a lawyer from the BLG law firm representing the developer has asked the Local Planning Appeal Tribunal (LPAT) to “consider” barring Dr. Salmasian from making his constitutional argument and from challenging the very jurisdiction of the LPAT.

The exchange of letters to the LPAT is most instructive:

After making his succinct legal points, Dr. Salmasian ends his letter by noting that the notion that “Time is of the essence to our client” advanced by the BLG lawyer is incompatible with the concept of a “minor variance”.

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Statement by Rick Mehta Regarding His Dismissal from Acadia University

The Ontario Civil Liberties Association supports Professor Rick Mehta to be fully reinstated to his tenured professorship at Acadia University.

This is Professor Mehta’s full statement regarding his August 31, 2018 dismissal:

LINK-PDF-File

Statement by Rick Mehta Regarding His Dismissal from Acadia University

SUMMARY

On August 31, 2018, President Peter Ricketts fired me from my position of Associate Professor of Psychology at Acadia University. In the letter that he gave me at my dismissal hearing, he stated that he was firing me on the basis of issues that “were wide ranging and include failure to fufill [my] academic responsibilities, unprofessional conduct, breach of privacy, and harassment and intimidation of students and other members of the University community.”

President Ricketts’ letter of dismissal states only broad categories of misconduct instead of providing any specific examples of misconduct on my part. The university hid behind vague accusations and opaque investigations, while refusing to spell out their concerns – which were based on filtered complaints. I believe that their stealth charges were pretexts to get rid of me at any cost. The real reason for my dismissal has to do with a culture war that is taking place in universities all over Canada and much of the Western world.

Since the 1990s, the political composition of academia has shifted dramatically to the left. At this time, the political composition of academics is skewed so that the left side of the political spectrum is far overrepresented relative to the right side; in other words, there is a lack of political diversity in modern academia. One consequence of having large groups of people thinking in a similar fashion is that it creates ideal conditions for extreme positions to take root. A second consequence is that it creates ideal conditions in which one group becomes dominant and does not tolerate voices of dissent.

At this time, many universities in Canada (Acadia included) are changing their mission to that of pursuing social justice instead of searching for universal truths. Social justice is focussed on an uncompromising commitment to equity, diversity, and inclusion. In my role as a free speech advocate, I have challenged many of the views that are dominant at Acadia. Rather than refute me, my detractors have instead stated that they are opposed to the manner in which I have expressed my arguments, that I have created a climate of fear on campus and/or social media, and that I have harassed and intimidated those with whom I disagree. In addition, my attempts to defend myself against these accusations have been framed as behaviours that are unethical or immoral.

In the sections that follow, I will first provide background information about myself so that readers can get an idea of how dedicated I am to maximizing students’ academic success. I will then explain the events that led me to become a free speech advocate, the events that led to the MacKay and Hooper Reports that form the basis for dismissing me, and the final events that preceded my precipitous dismissal. I will then end with my closing thoughts as I look to the future in this fight that has national implications for academic freedom in Canada.

Continue reading: PDF

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OCLA supports opponents of Ontario’s vague and unfair planning law

chestnut sandwhich house

The Ontario Civil Liberties Association (OCLA) sides with Ottawa residents who are challenging the constitutionality of the so-called “minor variance” bylaw-variance provision of Ontario’s Planning Act.

Dr. Hadi Salmasian’s constitutional challenge of section 45(1) of the Planning Act, his challenge of the jurisdiction of the Local Planning Appeal Tribunal (LPAT), and his opposition against a large multi-unit building development near his home will be heard on October 3, at 10 AM, at City Hall, Keefer Room, 110 Laurier Ave. W., Cartier Square, Ottawa, ON K2P 2L7. (LPAT File No. PL180613)

Dr. Salmasian will argue that Ontario’s bylaw-variance provision (s. 45(1) of the Planning Act) is unconstitutional for violation of the doctrine of vagueness and for violation of the Charter right of equal protection and benefit from the law.

Ontario is the only province in Canada whose bylaw-variance provision in its planning act sets a jurisdictional threshold as “minor variance”, without defining “minor” and without providing the established criteria of undue harm from compliance with the bylaw and absence of injury to neighbouring properties.

As a result, the known market and political forces have free reign. The variance provision has become a committee and tribunal planning instrument in-effect without democratic oversight, and the impacts on established neighbourhoods are devastating, in Ottawa at least.

Even the fact that the subject property of the urban lot is on a former industrial landfill (in Old Ottawa East, Ward 17), with “widespread presence” of toxic heavy metals and cancer-causing polycyclic aromatic hydrocarbons (PAHs), was not enough for the Committee of Adjustment to consider and to follow the law (Provincial Policy Statement directives ss. 3.2.1, 3.2.2 and 4.8.3(1)) by not approving the applications until after the required studies are proven to be accomplished.

OCLA has provided legal research and litigation logistic support to the self-represented appellant Dr. Salmasian.

Key submissions of the appellant to the LPAT include:

  • Notice of Constitutional Question, dated June 5, 2018 (PDF)
  • Factual and legal submissions, dated August 31, 2018 (PDF)
  • Book of Tabs for the legal submissions, dated September 6, 2018 (PDF)
  • Book of Authorities, dated September 3, 2018 (PDF)

Both OCLA and Dr. Salmasian are available to answer questions. Please initiate contact by email.

Hadi Salmasian, PhD, appellant
h_salmasian@yahoo.com

Denis Rancourt, PhD, Researcher, OCLA:
denis.rancourt@gmail.com

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OCLA letter to Hon. Caroline Mulroney, Attorney General of Ontario

The OCLA has sent a letter asking incoming Attorney General of Ontario Caroline Mulroney not to consent to prosecution under the censorship provisions of Canada’s Criminal Code, and to retract the Attorney General’s consent for ongoing prosecutions initiated with the consent of her predecessor.

The letter can be read here, and is embedded below:

Update: 2018-08-16 – Response from Attorney General Mulroney

Update: 2018-09-05 – OCLA’s reply to the Attorney General’s response

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