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Sean Speer: Doug Ford’s cabinet choices could define his second term

Commentary

Speculation is that Ontario Premier Doug Ford will soon appoint the members of his new cabinet. According to the old axiom “personnel is policy”, these decisions may be among the most important that the premier makes in his second term. They will invariably influence the ambition and orientation of the government’s policy agenda. 

It’s widely held that a major part of the Ford government’s political success has been its efforts to orient its conservative ideas and impulses to the interests, concerns, and aspirations of working-class Ontarians. This unorthodox policy agenda has manifested itself in tax reductions for low-income Ontarians, a large, generous, and progressive child tax benefit, a new labour model for gig workers, apprenticeship reform, a ban on non-compete agreements, and the endorsement of a new portable benefit for workers without employer-provided benefits. 

The political upshot of these policy-based appeals to working-class voters was the endorsements of more than a half dozen private sector trade unions in the recent election campaign and, ultimately, seat gains in working-class ridings like Thunder Bay, Timmins, and Windsor. These developments have rightly been interpreted as signs of a political realignment in the province. 

Yet one can also overstate this sort of analysis at this stage. Although the government’s re-election should be viewed as a return on investment for its early efforts to reach working-class Ontarians, a full and durable realignment is incomplete. The goal of the second term should be to see it through. The forthcoming cabinet appointments are a key first step. 

That’s because most progress to date has been concentrated in the policy innovation and stakeholder engagement of Labour Minister Monte McNaughton who not only understands the political fecundity of a new, more working-class conservatism (he recently said that “this is where leading conservative parties need to be”Ontario PCs’ pivot to blue-collar concerns helped it flip several ridings from the NDP https://www.theglobeandmail.com/canada/article-ontario-pcs-pivot-to-blue-collar-concerns-helped-it-flip-several/), but also seem to reflect it in his own tastes, preferences, and persona. He personifies the people and places that are key to building a durable, broad-based, and modern Conservative coalition in the province. 

The challenge of course is that McNaughton cannot be cloned. The test for the government, therefore, is whether it can extend his reformist energy and insights across the various government ministries and different policy areas. 

This will require that the premier appoint the right people in the right roles. But personnel may be a necessary yet insufficient determinant of the government’s ultimate policy and political progress. It will be even more important that Premier Ford conveys this working-class ethos—what I referred to in a recent Hub articleIf Doug Ford needs a governing agenda, improving Ontarians’ quality of life would be a good start https://thehub.ca/2022-06-07/if-doug-ford-needs-a-governing-agenda-improving-ontarians-quality-of-life-is-a-good-start/ as “quality-of-life conservatism”—to incoming ministers and their staff as well as the senior provincial bureaucracy. 

It can neither be a mere slogan nor the sole purview of a single minister. It must come to represent a policymaking lens that’s broadly applied across the government. That’s ultimately how to ensure that the premier’s sincere yet oft-undefined working-class instincts are translated into a credible, consistent, and constructive policy agenda.  

A recent memorandum to government officials and external partners from Ontario’s outgoing Advocate for Community Opportunities and Chair of the Premier’s Council on Equality of Opportunity identifies some short-term priorities along these lines, as well as possible obstacles to the development and implementation of a working-class agenda. (The Hub obtained a copy of the memo from one of its recipients and has since verified its authenticity.) 

According to Jamil Jivani, who was appointed to the role of provincial advocate in December 2019 and stepped down earlier this month, the Ford government should prioritize education and mental health issues to account for the distributional consequences of pandemic lockdowns which, according to various studiesCOVID school closures most harm students from poorest neighborhoods https://news.yale.edu/2021/01/05/covid-school-closures-most-harm-students-poorest-neighborhoods and reports,Learning loss due to school closures during the COVID-19 pandemic https://www.pnas.org/doi/10.1073/pnas.2022376118 disproportionately harmed marginalized youth. As he outlines in the memo: 

These particular recommendations [including cutting wait times for children to receive psychological services and more funding for community groups helping working-class youth overcome pandemic-induced learning loss] would address the greatest needs created by pandemic lockdowns and school closures, and therefore will provide the biggest bang for the buck when it comes to providing all Ontario youth with equality of opportunity.

The subtext of Jivani’s memo is that the government’s working-class ambitions won’t find full expression without addressing these secondary effects of the pandemic. One reads a sense of the duty of care in his outgoing advice. He believes that the government has a moral obligation to help those most affected by its own policy choices over the past two years. 

More generally, Jivani warns that the premier and his cabinet will need to overcome what he describes as “bureaucratic paternalism” within the government itself if they’re to make greater progress on working-class priorities. His criticism here applies equally to the political and public service arms of the Ontario government. 

The implication is that Queen’s Park has grown accustomed to dealing with sophisticated special interests that have their own lobbyists or industry groups and that this culture of clientelism (which has existed far longer than the current government) too often leaves ordinary people excluded or forgotten. 

Accounting for this inherent asymmetry, therefore, requires a combination of leadership, sustained effort, and a genuine commitment to inclusion. It must ultimately be about pulling new and different voices into the policymaking process. As Jivani puts it: “the province would benefit from an approach that encourages substantive diversity and inclusion in the form of experiential, educational, religious, and geographic differences.”

If the Ford government is to be lauded for its first-term efforts to reach working-class Ontarians, the decision it makes in the coming days and weeks—including (but not limited to) the composition of its new cabinet—may well determine how much further progress is achieved in its second term. The prospect of completing a full political realignment in the Province of Ontario is within the government’s reach. But it will need to follow McNaughton’s lead and Jivani’s advice in order to get there.

Joanna Baron: Our fraying constitutional order

Commentary

In a recent podcast interview, my American host asked me to comment on whether Canada constituted a nation, in the substantive sense. Beyond platitudes such as a shared commitment to multiculturalism, general good government, and a thin conception of liberty, there is not much there there, I reflected. No, there isn’t really a singular Canadian nation, I answered.

But I was oversimplifying: the fact is that Canada is a nation that contains many nations. The compromises of federalism as set out in the Constitution were specifically designed to accommodate the vast regional and cultural differences across our equally vast land and, for the most part, have held up well.

However, proposals in Alberta and Quebec are starting to nip at the fabric of our constitutional order. Both provinces are, as one academic recently put it, apparently treating the Constitution as a “buffet that one can pick and choose from”, rather than a blueprint for how power flows in a state.

Let’s take the Quebec s. 96 French language law example: the Legault government’s bill declares French to be the province’s sole official language,An Act respecting French, the official and common language of Quebec http://m.assnat.qc.ca/en/travaux-parlementaires/projets-loi/projet-loi-96-42-1.html bluntly contradicting the Constitution Act’s promise of a bilingual Canada, not to mention the core synthesis and post-bellum political compromise of Confederation.

The bill makes no mere symbolic declaration. Nor does it limit its intrusions to public displays of language such as business and street signage, but purports to regulate private workplaces and conversations. The bill permits the Office québécoise de la langue française the power to enter any building other than a “dwelling house” where there are activities governed by the language law, or where documents or property related to it “may be held,” to get information. It’s a sweeping assault on civil liberties, insulated from judicial review by the notwithstanding clause.

Most brazen from the perspective of constitutionalists, though, is Bill 96’s article 159, which seeks to unilaterally amend section 90 of the Constitution Act, 1867CONSTITUTION ACT, 1867 https://laws-lois.justice.gc.ca/eng/const/page-1.html by inserting the following provisions:

90Q.1.  Quebecers form a nation.

90Q.2.  French shall be the only official language of Quebec. It is also the common language of the Quebec nation.

To be clear, a constitutional amendment cannot be unilateral, even if it applies to sections of the constitution that pertain specifically to one province, as the PM sheepishly suggested. The core raison d’être of a constitution is to create a mutually-binding aggregate of core principles, which if altered in part is altered for all consenting parties.

And then there’s the matter of the Alberta Sovereignty Act which United Conservative Party leadership candidate Danielle Smith recently announced she would introduce if elected Premier. The Act starts from the premise that the application of federal jurisdictional authority is an elective matter and that Alberta can simply opt out where the federal law “interfere[s] with provincial areas of jurisdiction or constitute an attack on the interests of Albertans.”

In other words, the Act would, by sheer political fiat, circumvent the constitutional division of powers into federal jurisdiction (s. 91) and provincial jurisdiction (s. 92), wherever “Alberta interests” were thought to dictate accordingly.

The proposal includes a made-in-Alberta police force, pension plan, scheme for unemployment insurance, and banking regulations.The Free Alberta Strategy https://www.freealbertastrategy.com/the_strategy These proposals range in effect from unlikely to make Albertans any more independent (the presence of the OPP in Ontario, for example, doesn’t render Ontario closer to a sovereign unit), to inviting a superfluous double-layer of bureaucracy: creating an Alberta unemployment insurance program will not eliminate the fact that employment insurance is a federal program, and employers who fail to remit to it will risk federal enforcement actions.

Of course, recognizing that regulations under the hypothetical Alberta Sovereignty Act would inevitably end up in court for judicial review, the proposal, most stridently, also provides for an Alberta Judicial Independence Act, which establishes judicial appointments for all provincial judges.

First, this is blatantly contradictory to the Constitution Act’s s. 96, which makes the Governor-General and federal government responsible for all judicial appointments. Second, if the objective of the proposal is to ensure that the bench is filled with judges who have a similarly novel view of enforceability of federal laws as the authors of the Sovereignty Act— i.e., that Alberta can simply refuse to enforce them— it’s not likely to succeed. I wonder if the drafters of this proposal have met any judges, as they are not generally known for their rank groupthink nor their flippancy about settled bedrock principles, in Alberta or anywhere else.

If these provincial would-be rebels are interested in actually rolling back federal incursions into their jurisdiction rather than playing political brinkmanship, there are other places they might look. Federal power has metastasized beyond the original intention of the constitutional division of powers, and there are serious arguments to be made that the provinces can properly carve out more room to maneuver than they currently enjoy under the guarantees of the Constitution Act.

The Supreme Court’s 2021 Reference re Greenhouse Gas Pollution Pricing Act saw a sweeping federal carbon tax program that clearly interfered with matters of provincial property and civil rights to be a valid exercise of federal power using a lot of what has been called “judicial ad hockery” under the broad Peace, Order, and Good Government (POGG) power.

The Court may soon have opportunity to clarify the scope of POGG. Recently the Alberta Court of Appeal, in assessing the constitutionality of the federal Impact Assessment Act, also known as the “No More Pipelines” bill, made clear that “environment” is not a valid federal power, as the GGPA Reference seemed to imply. It concluded the Impact Assessment Act would “permanently alter the division of powers and forever place provincial governments in an economic chokehold controlled by the federal government.” The case is headed to the Supreme Court.

And in Quebec, the Attorney-General is challenging the constitutionality of an act governing Indigenous child services in which the federal government directed the provincial bureaucracy and executive on how to implement “national standards” within their own programs, effectively coercing the provinces into operationalizing a federal law. That case is also being heard at the Supreme Court this fall.

No doubt the twin phenomena of an overbearing federal government hovering over traditional provincial spheres of jurisdiction and defiant provincial governments declaring themselves exempt from the Constitution feed parasitically upon one another. The answer to restoring balance must be to return to the clarity and balance of the Constitution, rather than force a constitutional crisis for flagrantly political ends.