‘Not­with­stand­ing’ clause risky for prov­ince

Could mean ‘il­le­git­i­mate’ city coun­cil, says leg­is­la­ture’s lead­ing con­sti­tu­tional ex­pert

The Peterborough Examiner - - Canada & World - KRISTIN RUSHOWY AND

Pre­mier Doug Ford’s cut­ting of Toronto coun­cil ex­poses Queen’s Park to “le­gal risks that have not been prop­erly as­sessed,” warns the leg­is­la­ture’s lead­ing con­sti­tu­tional ex­pert.

Worse, it could leave the prov­ince hold­ing the bag for an “un­con­sti­tu­tional city coun­cil” whose ev­ery move could be chal­lenged in court — even though Ford is in­vok­ing the “not­with­stand­ing” clause to pass leg­is­la­tion re­duc­ing the num­ber of wards from 47 to 25.

Lib­eral MPP Nathalie Des Rosiers, one of the three co-ed­i­tors of 1,168-page “Ox­ford Hand­book of the Cana­dian Con­sti­tu­tion,” hushed the cham­ber Thurs­day with pointed ques­tions for At­tor­ney Gen­eral Caro­line Mul­roney.

“Does she be­lieve that this is a ser­vice to Toronto: to elect peo­ple who will be ef­fi­cient, but who will con­tinue to op­er­ate in an il­le­git­i­mate fash­ion?” Des Rosiers, a law school dean, told an un­char­ac­ter­is­ti­cally silent House.

Mul­roney, who is ap­peal­ing Mon­day’s rul­ing from On­tario Su­pe­rior Court Jus­tice Ed­ward Belob­aba that the gov­ern­ment’s bill vi­o­lates Char­ter rights, in­sisted she “can­not spec­u­late on what fu­ture lit­i­ga­tion will come.” On Thurs­day, in an emer­gency meet­ing, Toronto coun­cil voted 26-10 to in­struct the city lawyer to ex­haust all le­gal av­enues to de­feat Ford’s bill.

“We are us­ing the Char­ter, as I said, to up­hold the Con­sti­tu­tion. The peo­ple of On­tario are well within their rights to bring le­gal chal­lenges to the gov­ern­ment,” said the at­tor­ney gen­eral.

Des Rosiers said later that “there are ar­gu­ments that it’s the wrong use of the not­with­stand­ing clause be­cause of the retroac­tive as­pect of it.”

The Supreme Court has ruled that the clause can­not be used retroac­tively — in this case, by chang­ing nom­i­na­tion dates, she said.

Be­yond that, she said the Con­ser­va­tive gov­ern­ment could end up hav­ing to ef­fec­tively run the city if the leg­is­la­tion passes, 25 coun­cil­lors are elected, and then the prov­ince loses at the Court of Ap­peal or in the Supreme Court.

“You could say it’s (sit­ting) il­le­gally and there­fore we would have to pass more statutes to en­sure the le­gal­ity of it,” said the Ottawa-Vanier MPP, not­ing res­i­dents could even chal­lenge hav­ing to pay prop­erty tax in­creases ap­proved by an “il­le­git­i­mate city coun­cil.”

“The leg­is­la­ture would have to come back to val­i­date what­ever ac­tions city coun­cil would have made and that would create fur­ther chaos.”

Democ­racy is baked into the Con­sti­tu­tion and the not­with­stand­ing clause can­not be used to over­rule demo­cratic elec­tions. That could still leave the prov­ince vul­ner­a­ble to fu­ture con­sti­tu­tional chal­lenges to which the not­with­stand­ing clause would not ap­ply.

The un­con­sti­tu­tional Bill 5, the Bet­ter Lo­cal Gov­ern­ment Act, struck down Mon­day by Belob­aba for vi­o­lat­ing the Char­ter of Rights and Free­doms, was tabled again Wed­nes­day af­ter­noon as Bill 31, the Ef­fi­cient Lo­cal Gov­ern­ment Act.

Des Rosiers’s in­ter­ven­tion brought a de­cid­edly more cere­bral tone to the leg­is­la­ture af­ter the chaos sparked Wed­nes­day when Ford be­came the first pre­mier in On­tario his­tory to in­voke Sec­tion 33 of the Char­ter.

That con­tro­ver­sial clause gives the prov­inces and Ottawa the power to over­ride Char­ter rights con­flict­ing with a gov­ern­ment leg­isla­tive agenda.

Only one pro­tester was re­moved from the nearly empty pub­lic gal­leries on Thurs­day, af­ter he stood up and shouted at Mul­roney, and un­like Wed­nes­day there was no need for se­cu­rity guards to use hand­cuffs.

New Demo­crat MPPs, who had protested by thump­ing their desks the day be­fore, turned to pro­ce­dural wran­gling to ques­tion the le­git­i­macy of the leg­is­la­tion.

The NDP is now ap­peal­ing to Speaker Ted Arnott on two points of or­der ques­tion­ing the gov­ern­ment’s abil­ity to rein­tro­duce the bill. Leader An­drea Hor­wath said she is pulling out all the stops be­cause Ford “has had many chances now to pull this wrong­headed bill back and do the right thing by Toron­to­ni­ans and by On­tar­i­ans — and by Cana­di­ans, frankly — and get off this wrong­headed not­with­stand­ing clause.”

Hor­wath is ask­ing the Speaker to re­view whether the gov­ern­ment is try­ing to bring in “sub­stan­tially the same leg­is­la­tion twice” in the same ses­sion, which is against the rules.

As well, be­cause the gov­ern­ment is ap­peal­ing the Belob­aba de­ci­sion, the mat­ter is still of­fi­cially be­fore the courts and should not be de­bated in the house, she ar­gued.

Ford never men­tioned cut­ting Toronto coun­cil dur­ing the June 7 pro­vin­cial elec­tion cam­paign.

The rookie pre­mier has said he “won’t be shy” about us­ing Sec­tion 33 of the Char­ter again to pre­vent the courts from thwart­ing his plans.


Caro­line Mul­roney leaves the house af­ter speak­ing to re­porters fol­low­ing morn­ing ques­tion pe­riod with her as­sis­tant.


Lib­eral MPP Nathalie Des Rosiers in her Queen’s Park of­fice with a copy of the Cana­dian Con­sti­tu­tion on Thurs­day.

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