‘Notwithstanding’ clause risky for province
Could mean ‘illegitimate’ city council, says legislature’s leading constitutional expert
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.