Ford puts attorney general in double jeopardy
Doug Downey may have the toughest job(s) in Ontario’s cabinet.
First, the attorney general has to defend Doug Ford in the court of public opinion.
Second, it’s Downey’s duty to defend the premier in the law courts.
That’s twice the work. And double jeopardy.
As chief law officer of the Crown, Downey has racked up a string of courtroom losses trying to defend what judges deemed indefensible. In fairness, you can’t judge a lawyer by his caseload — after all, a lot depends on the client.
Ford’s penchant for picking fights has dealt Downey a losing hand, but give him credit: While the premier tends to lose his cool, the attorney general loses a case with grace — and keeps a poker face, as he did defending his track record at the RU Democracy Forum I co-hosted Tuesday at Ryerson University.
If Downey can’t defend a decision — or indecision — he won’t. Take the case of Lindsey Park, a lawyer and MPP who served as his parliamentary assistant until the premier stripped her of the job this month for having “misrepresented her vaccine status.”
Downey agrees it’s a big deal when someone working for the attorney general — and a practising lawyer — misrepresents the truth. So why hasn’t Park been expelled from the Progressive Conservative caucus, where she still sits as the MPP for Durham?
Good question. Choosing his words carefully, Downey punted to the premier.
“The premier has done his looking and he’s made his decision and he’s taken her (parliamentary assistant’s job) away, but she remains in caucus (and) that’s a decision that he gets to make — it’s not a discussion that I’m necessarily part of,” the attorney general said.
“Politicians are held to a higher standard … and lawyers are, and should be, held to a higher standard.”
But Downey, a Barrie lawyer who held senior positions in the Ontario Bar Association before entering politics, doesn’t duck when asked about the court cases he has fought and lost for the Progressive Conservative government.
Last year, Ontario was trounced for trying to force every gas station to display stickers opposing the federal carbon levy. Then, its appeal of the levy on constitutional grounds was rejected by the Supreme Court last March.
Just last August, Ford’s ongoing attempt to ban certain fees for post-secondary student groups was eviscerated in court as unlawful. The judge called it “profound interference.”
There are many more defeats that add up to a lot of judicial litigation over injudicious legislation. How does the government’s counsel plead?
“We got reprimanded” in some cases, he concedes. “Look, you fight things you believe in … and the courts are the perfect forum for that.”
Perhaps the most consequential defeat came last June, when a judge called out the government’s attempt to restrict advertising by outside voices (unions and interest groups) in the 12 months preceding election day. Inexplicably, Ford’s Tories had doubled the pre-existing restraint period of six months, with the judge scolding the government for not saying why.
The premier’s response was unprecedented — overrule me, I’ll override you. He summoned the legislature for an emergency vote during the summer recess to invoke the so-called nuclear option — the “notwithstanding” clause — and it fell to Downey to bring in a bill for the first time ever suspending the Canadian Charter of Rights and Freedoms’ protection of free expression in Ontario.
Downey defends the right of an elected government to suspend rights, but agrees it would be wrong to do it routinely: “Absolutely — it absolutely is a special power that shouldn’t be a routine power.”
That tension between charter rights and governing rights is on the minds of students at the Lincoln Alexander School of Law, noted founding dean Donna Young, who co-hosted Tuesday’s event with me (full disclosure: I’m a visiting practitioner in the Faculty of Arts). Downey counters that “the charter is a living tree,” and at some point “there has to be guardrails — and it’s the legislature’s job to make those decisions.”
That said, Downey has also acted as his own guardrail within government, sometimes trying to save Ford’s Tories from themselves. Sources say that when cabinet wanted to beef up police powers mid-pandemic, ultimately sparking a public outcry, he was a lone voice of caution.
Downey points to his modernization and digitization drives to make the courts more accessible. Access to justice, however, remains a challenge — critics note that courtroom Zoom calls won’t help those whose calls for legal aid go unanswered.
In fact, Downey had second thoughts about massive cuts to the legal aid budget brought in by his predecessor. While the first round of reductions remained in place, he forestalled any future cutbacks after he took over in mid-2019.
Asked about the uproar in Ottawa over former justice minister Jody Wilson-Raybould fending off political interference in the SNC-Lavalin affair, Downey says lessons must be learned provincially, too. “It’s about educating people on where that line is,” which means telling colleagues, “Look, I can’t talk to you … I don’t want to hear about this.”
Safeguarding the scales of justice is a balancing act. So, too, is juggling the judicial and the political.
For Ontario’s attorney general, double jeopardy is in the job description.