Political leaders past and present are raising concerns about Ontario Premier Doug Ford鈥檚 plan to use the notwithstanding clause of the Charter of Rights and Freedoms to enforce his changes to the size of Toronto鈥檚 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鈥檚 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鈥� and candidates鈥� freedom of expression.
Brian Mulroney, who was prime minister in the early days of the Charter, says that although it鈥檚 鈥渘ot anti-democratic鈥� for a premier to use the clause, he was 鈥渘ever tempted to use it鈥� while in office.
鈥淚 had no interest in using it no matter what,鈥� Mulroney told reporters Tuesday.
The former Progressive Conservative prime minister鈥檚 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.
鈥淔or me, the backbone of our democracy, the strength of our democracy, is the independence and competence of the court system in Canada,鈥� 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鈥檚 Power Play Tuesday that he was 鈥渘ever for a second鈥� tempted to use the power.
鈥淭hat 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,鈥� he said.
According to Rae, the clause should be used only 鈥渨ith the utmost of discretion and only at the conclusion of a judicial process where you say, 鈥榃ell, we respectfully disagree with the court.鈥欌��
鈥淚n Ontario鈥檚 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鈥檛 want to get into the business of second-guessing the courts,鈥� 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.
鈥淥ur 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,鈥� she told Power Play.
Redford said that using the notwithstanding clause without exhausting appeals 鈥渂rings 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.鈥�
Earlier on Tuesday, Prime Minister Justin Trudeau told reporters in Winnipeg that he believes the use of the notwithstanding clause must be done with 鈥渢he utmost forethought and reflection.鈥�
鈥淭he Charter is there to protect Canadians from governments that overreach,鈥� Trudeau said. 鈥淚t鈥檚 something that Canadians value and identify with, and it鈥檚 something that protects us all.鈥�
Former Conservative justice minister Peter MacKay told 麻豆影视 that he was surprised that Ford chose to use the so-called 鈥渘uclear option鈥� for what MacKay described as 鈥渁 very limited circumstance.鈥�
鈥淎s 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,鈥� MacKay said.
鈥淏ut clearly ... it was never intended for that purpose,鈥� he added, referring to Ford鈥檚 council cuts legislation. 鈥淚t was intended for very limited issues deemed to be of critical importance at a critical time.鈥�
