The question of whether the federal government can intervene in a province’s use of the notwithstanding clause is, for now, a moot point after Prime Minister Justin Trudeau suggested Tuesday he has no plans to get involved.
Ontario Premier Doug Ford is pushing through a controversial plan to slash the size of Toronto city council. A judge blocked that plan, but on Monday, Ford said his government will override the court decision by invoking the notwithstanding clause in the Charter of Rights and Freedoms.
Speaking with reporters from Winnipeg, Trudeau was asked for his reaction to the vow by Ford to invoke the contentious measure, which allows a province to override certain sections of the Charter for five-year terms and which has never before been used in the province. He was also asked whether the federal government plans to intervene to try to prevent that from happening.
“Any time a government chooses to invoke the notwithstanding clause to override the Charter’s protections, it has to be done deliberately, carefully and with the utmost forethought and reflection,” Trudeau said.
“As my government said yesterday, we’re disappointed by the provincial government in Ontario’s choice to invoke the notwithstanding clause but I won’t be weighing in on the debate about how big Toronto municipal council should be.”
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Some, including Toronto city councillor Kristyn Wong-Tam, have mused whether Trudeau should use an archaic section of the Constitution that allows a federal government to “disallow and reserve” provincial legislation.
Others suggested that doing so would be politically unpalatable given that the power was last used in 1943.
In July, Ford announced he would introduce legislation to slash the size of Toronto city council to 25 from 47 members.
That move came just weeks ahead of a municipal election scheduled for the city and quickly prompted a legal challenge from the city’s lawyers.
That challenge argued that changing the makeup of the council in the midst of an election campaign was unconstitutional.
An Ontario Superior Court judge agreed on Monday.
However, that ruling has been widely criticized by constitutional scholars for the legal rationale it used to strike down the legislation.
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As a result of the ruling, Ford vowed to invoke the notwithstanding clause, a rarely-used section of the Charter of Rights and Freedoms originally designed to allow provinces to protect existing social and political institutions by overriding judicial decisions on issues that were not controversial.
The clause can only be applied in five-year terms so that governments invoking it must face voters before being able to invoke it again.
“I will trust that Ontarians will reflect on whether or not the provincial government made the right decision on overriding the Charter of Rights and Freedoms on this issue,” Trudeau said in a nod to that.
Brian Mulroney, former Progressive Conservative prime minister, also faced questions about the Ontario government’s plan to use the notwithstanding clause during an appearance at an event in Ottawa on Tuesday afternoon.
His daughter, Caroline Mulroney, is Ontario’s Attorney General and defended Ford’s plan after it was announced.
Brian Mulroney said he was restricted in how much he could say on the matter but noted there are serious concerns that go along with the use of the clause.
“I was never a big fan of the notwithstanding clause,” he said, suggesting that if someone like “a premier in Prince Edward Island” invoked it to override a unanimous decision by the Supreme Court, “you’d better start asking yourself some questions about how the hell did this thing get in our Constitution?”
The notwithstanding clause came about following a 1981 meeting of federal and provincial ministers where former prime minister Pierre Elliott Trudeau was working to get them all on board to create the Charter of Rights and Freedoms, which enshrines fundamental rights like democratic rights, freedom of expression, minority language rights and the right to be free from discrimination.
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The Charter is entrenched in the Constitution, and was signed into law in 1982.
Some of the rights in it, however, can be overridden by the federal or provincial governments, although the federal government has never invoked the clause.
Doing so means the province can essentially disregard the rights laid out in certain sections of the Charter of Rights and Freedoms including the right to freedom of expression, which was what the Ontario Superior Court judge ruled Ford’s plan did on Monday.
However, constitutional lawyers have said the judge erred because the constitutional protections he based his ruling on do not apply to municipalities.
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Ford slammed the ruling, calling it “deeply concerning” and “unacceptable.”
He has also been accused in numerous editorials and columns of questioning the rule of law itself when he said, “I was elected. The judge was appointed.”
“A democratically elected government, trying to be shut down by the courts, that concerns me more than anything,” he said.
Judges are appointed to limit their exposure to political pressure that might influence their decisions.
Brian Mulroney said that judicial independence is part of the foundations of Canada.
“To me, the backbone and the enormous strength of Canada is the independence and the magnificence of our judiciary,” Mulroney said.
“So when somebody, such as the premier of Prince Edward Island, say, introduces the notwithstanding clause and overrides the Supreme Court of Canada, we’ve got a problem.”
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