In a last-minute appeal to Ontario’s top lawyer, more than 400 legal professionals have signed an open letter to Attorney General Caroline Mulroney, urging her to vote against her government’s controversial proposal to invoke the notwithstanding clause to slash the size of Toronto city council in the middle of the municipal election.
“The government is beholden to the highest law in the land, which is the constitution,” the letter states. “We expect the Attorney General of Ontario to value the role of the judiciary and the important check that the courts have on the impulses of the government.”
The author of the letter, Toronto family lawyer William Hutcheson, went public with the missive Sunday afternoon, hours before the legislature was set to resume for a midnight session to debate Bill 31, The Efficient Government Act, which cuts Toronto council to 25 wards from 47.
For the first time in Ontario history, the bill invokes the notwithstanding clause under Section 33 of the charter, which allows Ottawa and the provinces to overrule charter rights that go against a government’s legislative agenda. Premier Doug Ford triggered the so-called nuclear option last week after a previous incarnation of the legislation, The Better Local Government Act, was deemed unconstitutional by Superior Court Justice Edward Belobaba because it infringed on charter rights.
The province is appealing that decision.
A spokesperson for the attorney general did not respond to a request for comment. On Wednesday, when Bill 31 passed first reading, Mulroney defended her government’s decision to invoke the notwithstanding clause, saying the Constitution “makes it clear that the province has exclusive jurisdiction over municipalities, and Section 33 of the Charter confirms the paramountcy of the legislature.”
Hutcheson and his cosignatories are imploring Mulroney to reconsider — lawyer-to-lawyer.
“(Your) office is assigned to champion and safeguard the fundamental principles of the rule of law and due process in Ontario, and the rights of the people,” the letter states. “To use (the notwithstanding clause) is to set a very dangerous precedent that will threaten the future rights of all Canadians and jeopardize respect for the rule of law and the protection of minorities in this country. As members of the legal community, we expect you to vote against any proposal to use the Notwithstanding Clause.”
Hutcheson said Mulroney should recognize this moment for what it is — “a line in the sand.”
“I don’t think that Premier Ford is going to care what I have to say, but I think the attorney general, as a lawyer, might care about what other lawyers have to say,” he said. “I think she should really think carefully about the legal implications of this.”
Hutcheson did not vote for Ford, however, he said the “overwhelming” response to his letter from lawyers of all stripes shows concern about this issue crosses party lines.
“I know there are lawyers on this list who are Conserveratives and are shocked by this,” he said. “The process here, and the use of the notwithstanding clause — that’s what’s really scary.”
He added that if Mulroney were to vote against Bill 31, it would be “a really strong statement.”
“The Premier is just one vote at the end of the day. It requires all the MPPs to vote and to do the right thing,” he said.
Toronto intellectual property lawyer Yuri Chumak, who is among the signatories, said it is “premature to zap the decision of the (Superior Court judge) before all the appeals are exhausted.”
“It’s not appropriate to sidestep all of the legal history that we have in order to overturn a trial-level decision,” Chumak told the Star. “It just makes sense to let the process work itself out.”
The lawyers’ letter echoes a plea to Conservative MPPs and ministers by a trio of political heavyweights, who were among the architects of the Constitution’s notwithstanding clause.
In a joint statement on Friday, former prime minister Jean Chrétien, retired chief justice of Ontario Roy McMurtry, and former Saskatchewan premier Roy Romanow said the clause should only be invoked in “exceptional situations” and that Bill 31 “does not meet this criteria.”
“We condemn his actions and call on those in his cabinet and caucus to stand up to him,” they said of Ford.
Other political heavyweights who have spoken out against Ford’s decision include Prime Minister Justin Trudeau, former Ontario premier Bill Davis and the attorney general’s father, former prime minister Brian Mulroney.
The lawyers’ letter concludes by reminding Caroline Mulroney of her party’s pledge to protect charter rights.
“Brian Mulroney, who was the Prime Minister shortly after the Charter of Rights and Freedoms was enacted, has said that he had no interest in ever using the Notwithstanding Clause,” the letter states.
“Is the Progressive Conservative Party now abandoning those fundamental values?”