Political leaders past and present are raising concerns about Ontario Premier Doug Ford’s plan to use the notwithstanding clause of the Charter of Rights and Freedoms to enforce his changes to the size of Toronto’s city council.
The notwithstanding clause is Section 33 of the 1982 Constitution Act. It allows the provinces or the federal government to overrule certain Charter rights for a period of five years by using an Act of Parliament. Ford said Monday that he would use the power for the first time in Ontario’s history after a court ruled that his legislation to cut the size of Toronto city council from 47 seats to 25 mid-election interfered with voters’ and candidates’ freedom of expression.
Brian Mulroney, who was prime minister in the early days of the Charter, says that although it’s “not anti-democratic” for a premier to use the clause, he was “never tempted to use it” while in office.
“I had no interest in using it no matter what,” Mulroney told reporters Tuesday.
The former Progressive Conservative prime minister’s daughter, Caroline Mulroney, is the current Ontario Attorney General who will oversee the historic legislation. They have not discussed the issue, he said.
Mulroney added that he has always opposed using the clause to overrule Supreme Court of Canada decisions.
“For me, the backbone of our democracy, the strength of our democracy, is the independence and competence of the court system in Canada,” Mulroney added.
Bob Rae, who served as NDP premier of Ontario from 1990 to 1995 and later as interim leader of the federal Liberals, told CTV’s Power Play Tuesday that he was “never for a second” tempted to use the power.
“That may have had something do with the fact that I was very much involved in the constitutional discussions ... and felt very strongly that the Charter was a very fine achievement for Canada,” he said.
According to Rae, the clause should be used only “with the utmost of discretion and only at the conclusion of a judicial process where you say, ‘Well, we respectfully disagree with the court.’”
“In Ontario’s case, as soon as the Charter became the law, it very quickly became the view of a lot of people in different political parties that you really don’t want to get into the business of second-guessing the courts,” he added.
Former Alberta premier Alison Redford, a Progressive Conservative, said that it can be appropriate for premiers to use the clause, but she believes it was only intended to be used after exhausting all possible appeals in the courts.
Redford said that when she was attorney general in Alberta, she thought about using it in legislation aimed at controlling gangs that critics warned might be unconstitutional but it was only a last resort.
“Our view at the time was to let the courts decide and if the courts did not decide in our favour then to possibly consider it,” she told Power Play.
Redford said that using the notwithstanding clause without exhausting appeals “brings it into the legislative process, which is different than what I think the people who drafted the constitution and agreed to the constitution in 1982 intended.”
Earlier on Tuesday, Prime Minister Justin Trudeau told reporters in Winnipeg that he believes the use of the notwithstanding clause must be done with “the utmost forethought and reflection.”
“The Charter is there to protect Canadians from governments that overreach,” Trudeau said. “It’s something that Canadians value and identify with, and it’s something that protects us all.”
Former Conservative justice minister Peter MacKay told CTV News that he was surprised that Ford chose to use the so-called “nuclear option” for what MacKay described as “a very limited circumstance.”
“As a former federal justice minister issues that often came before us around child protection, particularly those that involved child sexual abuse or human trafficking (may have warranted) using the notwithstanding clause due to the public support,” MacKay said.
“But clearly ... it was never intended for that purpose,” he added, referring to Ford’s council cuts legislation. “It was intended for very limited issues deemed to be of critical importance at a critical time.”
“But clearly ... it was never intended for that purpose,” he added, referring to Ford’s council cuts legislation. “It was intended for very limited issues deemed to be of critical importance at a critical time.”
