An Open Letter to Ontario’s MPPs, from Paul McKeever

September 12, 2018 by  

Dear Honourable Member:

Re: Notwithstanding Clause and Bill 5 (Better Local Government Act, 2018)

Today, you will face howls of protest from a Toronto Establishment that has suddenly found it convenient to cast you in the role of enemy of justice and democracy. Specifically, they seek to demonize anyone who votes in favour of a bill that would use the Canadian Charter of Rights and Freedoms‘ notwithstanding clause to immunize it from potential mis-application of the Charter. As the leader of the Freedom Party of Ontario, and as a practising lawyer of some 21 years, I am writing to explain to you why the demonizers are in the wrong, and why voting in favour of the legislation actually will render you the better defender of individual freedom and democracy, as well as a defender of the reputation of the administration of justice. I will enumerate my arguments for easy reference.


1. Good decision makers, not pieces of paper, defend freedom and democracy

Printed words are just shapes on paper until a human being interprets them. Even where there is widespread agreement upon the meaning of a word or phrase among laymen, the meaning of the same word or phrase can be stretched, strained, squashed, reformed and made to fit the purpose of just about any whim by a lawyer or judge with sufficient gift of the gab. Legislators do it in statutes. Judges do it in their interpretations and applications of those statutes.

All of us who have been paying any attention have observed instances in which legislators have defined words or designed legal schemes that honour the letter of the law but that clearly violate its spirit. One need look no further than such arguments as “it’s not a tax, it’s a health premium” to catch my drift.

Likewise, it is an odd judge indeed who could have any difficulty finding a freedom-offending law to be “demonstrably justified in a free and democratic society”. In practice, a “free and democratic society” is whatever collection of vague and ambiguous things a particular judge deems it to be, and the judge is the only possible determinant of whether the freedom of the individual will prevail over whatever is “demonstrably justified” in such a society.

Words on paper have never defended or offended anyone. People have. The defence or offence of freedom and democracy is carried out not by dusty statutes, but by thinking, choosing, acting human beings like you. Moreover, such thinking, choosing, and acting is a constant process; a constant war between defenders and offenders (who, on an issue by issue basis, sometimes switch sides).

My point is this: You are right to reject the notion that the Charter, or any given statute, is a defender of individual freedom or democracy. The same Charter or statute can be used to defend individual freedom and democracy, and to provide a cover for the violation of freedom and democracy. As a legislator, the freedom and democracy of your constituents is largely dependent upon the decisions you make in the legislature.


2. Respect for the administration of justice can be undermined or defended by each branch of government

As a lawyer, I know it is important that the administration of justice remains in good repute. And, as a lawyer, a party leader, and a candidate in many past provincial elections, I know that the defence of that reputation must be a responsibility that falls not only on the judiciary and officers of the court, but also upon legislators and the executive.

Among the most serious threats to respect for the administration of justice is a decision by one branch that leaves an unwarranted impression that another branch has overstepped the bounds of its authority. Worse still is a decision that states or implies that the overstepping was done intentionally or for an improper purpose.

If the purpose of laws is to authorize the use of force that ensures that no individual is deprived of his or her life, liberty, or property without his/her consent (and, I submit, that is the only legitimate purpose of law) – i.e., that defends individual freedom and democracy – then a judicial, legislative, or executive decision that runs contrary to that purpose is a threat to respect for the administration of justice. For that reason, if a court’s decision runs contrary to the purpose of defending such freedom and democracy, you – as a legislator – have a duty to take whatever rational legislative action you can to defend the reputation of the administration of justice.

The Charter provides tools both to the judiciary and to the legislature. It provides the judiciary with a means of striking down statutes that violate individual freedom or democracy. It also provides the legislature with a means of immunizing a statute from judicial interference. It is not only right, but an obligation of each branch, to use their respective tools in the defence of individual freedom and democracy, and in defence of the administration of justice. If the judiciary has – or can be expected – to apply the Charter in a way that does not serve the purpose of defending individual freedom and democracy, or that may bring the administration of justice into disrepute, it is not only right, but an obligation of the legislature to use the Charter tool with which it has been provided for the purpose: the notwithstanding clause.


3. The reasoning of the Court with respect to Bill 5

On September 10, 2018, the Superior Court of Justice interpreted and applied the Charter as it saw fit in respect of Bill 5, titled the “Better Local Government Act, 2018“. I encourage every individual to read the decision for himself or herself, and to decide upon the strengths or weaknesses of the Court’s analysis (see: ). However, I do not think I misrepresent the Honourable judge’s reasoning by summing it up as follows:

(a.1) “The question for the court, however, is not whether Bill 5 is unfair. The question is whether the enactment of Bill 5 is unconstitutional.”

(a.2) “The enactment and imposition of Bill 5, radically redrawing the electoral districts in the middle of the electoral process undermined the very notion of a ‘fair…’ election.” Such unfairness violated the candidates’ section 2(b) freedom of expression.


(b.1) “The Province is right to say that s. 2(b) of the Charter does not guarantee a 47-ward election platform.”

(b.2) “The evidence before this court supports the conclusion that if the 25 FEDs option was adopted, City councillors would not have the capacity to respond in a timely fashion to the “grievances and concerns” of their constituents…I find that the Impugned Provisions (that impose a 25-ward structure with an average population size of 111,000) infringe the municipal voter’s right under s. 2(b) of the Charter to cast a vote that can result in meaningful and effective representation.”

I have the utmost respect for the judiciary in general, and for the administration of justice. So kindly do not infer otherwise when I confess that I cannot bring arguments (a.1: fairness has nothing to do with it) and (a.2: it’s unfair, so it’s a violation of free expression) into agreement. Nor, I beg, will you do so when I confess that, likewise I cannot square (b.1: changing the number of wards is not a Charter violation) and (b.2: changing the number of wards is a Charter violation).

Trust me, dear legislator, that if you suffer from the difficulty from which I suffer, in respect of reconciling the above-noted reasonings, I will not infer that you hold the administration of justice in contempt. And, your best judgment being the best you have to work with, I can only ask that you act upon your best judgment when deciding whether the Court’s decision better serves to defend individual freedom and democracy, or to beg for remedy from you and your elected members.

In making your decision with respect to the use of the notwithstanding clause, and in honouring your obligation to uphold respect for the administration of justice, I quote, for your consideration, the following of the Court’s passionate condemnations of the legislature and its process:

“Most people would agree that changing the rules in the middle of the game is profoundly unfair. ”

“It appears that Bill 5 was hurriedly enacted to take effect in the middle of the City’s election without much thought at all, more out of pique than principle.”


4. The Charter’s current “defenders”: fair-weather friends

There are those who today – in the context of Bill 5 – suddenly have found a friend in the Charter‘s “guarantee” of freedom of expression. Having advocated for free speech most of my adult life, I can say without reservation that the majority of those folks are merely fair weather friends of the Charter and free expression. In the past, they have called for all sorts of circumscriptions on what constitutes “free speech”. Some of them regularly condemn free speech as a whole, adding that it is somehow inherently racist, patriarchal, evidence of Western prejudice, and the like. In short: they are hypocrites. The section 2(b) freedom they today pretend to care about so much will, tomorrow – in another context, such as freedom of speech on our university campuses – be the very freedom they vilify. To the more meek among you: ignore them. To the more outspoken: condemn their hypocrisy.

You will even find such fair-weather Charter friends among the Members of our legislature. Just yesterday, the member for Ottawa-Vanier, Nathalie Des Rosiers, took to social media ( with a call upon the lawyers in Ontario’s cabinet to resign:

“You were not elected to do this. This is not a case to use the #notwithstanding clause.”

she wrote. Yet the same Member in February of 2017 brought a motion that deliberately package-dealed opposition to racism with opposition to criticism, so as to gag Members who might otherwise express any intolerance for the idea or advancement of theocracy; any opposition to the undeniable pro-theocratic activity that is undermining and threatening individual freedom and democracy in virtually every country on Earth. Where was Ms Des Rosier’s love of free speech and the Charter when she made that motion with such zeal?



In my view, a vote in favour of a bill that shields a Toronto seat redistribution from judicial interference is not only fair game, it is necessary, in the circumstances. It is a defence of democracy, and it will encourage respect for the administration of justice. By voting in favour of using the notwithstanding clause, you will be encouraging the judiciary to take greater care in keeping its focus upon the proper purpose of government – defending individual freedom and democracy – and of the Charter. If the legislature shows itself to be too timid to send that message to the court when something so insignificant as the number of Toronto councillors is at stake, the legislature will be emboldening activists to strike down the more significant legislation yet to be introduced or tested in our courts.

Doing something that has never been done before might take courage. Hopefully, what I’ve given you above will lessen your need for courage, and strengthen your defence against the hypocrites who, in the name of democracy and justice, are actually undermining both.

Yours in the defence of freedom and democracy,

Paul McKeever


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