In the unlikely event that President Trump was paying attention to events in Canada this week, he might have felt a touch of envy.
Doug Ford, the premier of Ontario, received a setback when a court struck down his plan to cut the size of Toronto’s City Council in the midst of an election campaign. But unlike Mr. Trump, the head of Canada’s most populous province had an easy fix. He pulled out a section of Canada’s constitution that allows him to override the court decision by ignoring the parts of the constitution it was based upon.
In the United States, the idea that a political leader can simply ignore constitutional rights and rulings from the country’s courts seems the stuff of fantasy. But, for better or worse, the measure was baked into Canada’s 1982 constitution. That also makes Canada perhaps the only place on earth where the words “notwithstanding clause” aren’t met with a blank stare.
Mr. Ford’s move to override the constitution provoked strong criticism from across the political spectrum, including from some prominent members of his own party, the Progressive Conservatives. But there is no question that the constitution gave him the rarely used power to ignore what the courts and the constitution itself say.
After the dust died down a bit this week, I dipped into The Times’s digital archives to look back at how we reported on the talks that created the 1982 constitution, including, to use The Times’s preferred description, its override measure.
[Digital and print subscribers have unlimited access to TimesMachine, which offers digital reproductions of all editions from 1851 to 1980, as well as our more recent online archive. What’s that? You don’t subscribe? Well, we have a special offer for you right now.]
A bit of condensed history for readers outside of Canada (Canadians, please skip ahead): The keystone of Canada’s constitution when the country was created in 1867 was a piece of British law. Britain gave Canada full political autonomy in 1931, except for one thing: because Canada had not come up with its own constitution, Britain continued to hold the power to amend the country’s constitution.
Creating a made-in-Canada constitution was a priority for Pierre Elliott Trudeau even before he became prime minister in 1968. The failure of Quebec’s first separation referendum in 1980 gave him the opening to bring the provinces together to attempt just that.
But here’s the thing: when we talk about the constitution today, we’re usually thinking about its charter of rights and freedoms. That’s what the Ontario court used to knock down Mr. Ford’s plan for Toronto’s council. But when Mr. Trudeau first gathered the provinces’ premiers in 1980, rights and freedoms were barely on the radar.
The talks were dominated by squabbling over the division of powers between the federal and provincial governments, control of natural resources, and how to amend the constitution in the future. It was Mr. Trudeau who pushed to put Canadians’ rights into the country’s fundamental law. His effort was backed by only the premiers of Ontario and New Brunswick.
Henry Giniger, one of my predecessors who covered the talks, began one article about the issue with his eyebrows raised: “Canada’s government leaders hotly debated today what Americans generally take for granted — a constitutional bill of rights.”
Like Mr. Ford today, Canada’s other premiers, who came to be called the Gang of Eight, argued that constitutionally guaranteed rights would take away power from elected governments. As the other questions were largely resolved, the charter of rights became a dealbreaker.
Various schemes were floated to salvage the deal. The Gang of Eight proposed setting aside the charter of rights to get a constitution on the books, one that would also allow them to reject any future constitutional amendments. Mr. Trudeau called their plan “‘a victory for those who want to move Canada slowly toward disintegration.”
The compromise that finally stuck was the little-used measure Mr. Ford has invoked. “By United States standards — and Mr. Trudeau’s — that is a substantial surrender of national power,” The Times wrote in an editorial after the deal (without Quebec’s agreement) was made. “But the victory was worth the concession.”
Mr. Trudeau never backed away from his dismay over that compromise. Now the comparatively minor issue of Toronto City Council’s optimal size (with all due to respect to Toronto voters), combined with a premier promising to disrupt the status quo, has revived a constitutional debate from nearly forty years ago. If Mr. Ford follows up on his suggestion that he’ll override even more court rulings, the debate over political power versus constitutional rights may spill over into next year’s federal election campaign.
As promised, we now have a complete video available of our recent event in Ottawa where I was joined by three of our U.S. political correspondents to discuss politics in the age of Mr. Trump.
It was clear from that event that many Canada Letter readers are interested in American politics, particularly during the midterm elections. If you’re in that camp, The Times has a new, nightly newsletter to help guide you through the current American political scene.
And all those keeping an eye on the North American Free Trade Agreement talks should read this story by Jim Tankersley, who covers economics for The Times, on corporate America’s pushback against Mr. Trump’s trade policies.
— Mark Carney, the former Bank of Canada governor who is often touted as a future politician, won’t be back home from Britain before the next election.
— Norm Macdonald, the stand-up comedian from Quebec City and Ottawa, has developed a knack for offending even when he’s not telling jokes.
Around The Times
— Even though the United States plans to withdraw from the Paris climate agreement, the Global Climate Action Summit in San Francisco, which is being attended by Catherine McKenna, Canada’s environment minister, is trying its best to curb its own carbon footprint.
— A museum in Denmark is looking at our relationship with earth’s closest celestial body, and the result is pretty fantastic.
— When Diane Leather was told that she had become the first woman recorded to have run a mile in under five minutes, she replied: “Oh good, at last.”
A native of Windsor, Ontario, Ian Austen was educated in Toronto, lives in Ottawa and has reported about Canada for The New York Times for the past 15 years. Follow him on Twitter at @ianrausten.