Hundreds of Ontario lawyers and nearly 100 of the province’s most prominent legal academics are publicly calling on Attorney General Caroline Mulroney to stop the government’s push to trim the size of Toronto’s city council.
Meanwhile, the province has announced its intention to use both the courts and the legislature to ensure bill 5 passes, including invoking s. 33, the notwithstanding clause of the Canadian Charter of Rights and Freedoms.
In response, William Hutcheson, a Toronto-based family lawyer who is a sole practitioner, launched an online letter of legal professionals who said they are “gravely concerned about Premier Doug Ford’s proposed use of the Notwithstanding Clause to pass Bill 5,” and were writing to Mulroney “to urge [her] not to support this unprecedented act.”
Hutcheson launched the letter on Sept. 12 and says there has been a large response. As of midday Monday, there were about 500 lawyers who had signed the letter.
“The use of the notwithstanding clause, it really threatens 36 years of really important legal cases,” says Hutcheson, a Toronto-based family lawyer who is a sole practitioner.
A municipal election for city councillors in Toronto is currently slated to occur Oct. 22, after a ruling by Ontario Superior Court Justice Edward Belobaba last week that said the province could not proceed with the bill, saying it “clearly crossed the line.” The matter is expected to come to a head this week, as the Ontario legislature is in session to try to get the bill passed.
Hutcheson says Charter cases — such as same-sex marriage or the right to have an abortion — have important implications. He says s. 33 can override s. 2 of the Charter, as well as sections seven through 15.
He says the province is “undermining the rule of law” by using s. 33 in this instance.
“[I]f you then go read the Charter and remind yourself of what s. 2 and what sections 7 through 15 say, they’re really fundamental rights, like freedom of association or freedom of speech or equality, the right to be told what you’re charged with criminally, really key things,” he says.
“All of that is a risk if you have a government that is willing to use the notwithstanding clause and is especially willing to use the notwithstanding clause trivially, where it’s not something that was part of a mandate even in the election and not the last course [of action]. They haven’t even run out their appeal process in the courts.”
Hutcheson manually adds the names to the letter after people add their names through an online Google link, and plans to deliver it to the province this week. The list includes a former member of the Ministry of the Attorney General.
“I’m not surprised that there are this many lawyers and I’m sure there are hundreds more that agree with this,” he says. “People are still signing.”
Brenda Cossman, a law professor at the University of Toronto and director of the Bonham Centre for Sexual Diversity Studies at the University of Toronto, spearheaded the organization of a letter to Ontario Premier Doug Ford and Mulroney from legal academics. The letter said the province’s “decision to invoke the notwithstanding clause is deeply troubling.”
As of midday Monday, there were 86 people who had signed, she says.
Cossman says the move by the province to invoke the clause is “unprecedented” in the province’s history.
“I think all of my colleagues were quite shocked and dismayed at the announcement made last Monday that the premier was going to move immediately to use the notwithstanding clause,” she says.
“I think we were all dismayed for very, very similar reasons, which is really the idea that the notwithstanding clause should be used as the very last resort, not the first.”
Cossman says the clause has only been “rarely” used.
“So many governments — Liberals, Conservative, NDP — have had their conflicts with the courts, but they’ve never used the notwithstanding clause. They just find some other way to tweak their legislation to bring it into compliance with the Charter,” she says. “I think this is a really dangerous precedent that the government is prepared not only to use it in this case but also very clearly signalling its intention to use it again.”
The letter said the province is “questioning — and rejecting — the role of an independent judiciary in upholding the fundamental rights and freedoms of every person in Ontario.”
“Canada’s constitutional democracy is premised on a balancing of majority rule and constitutional rights. Both legislatures and courts have a fundamental role to play in maintaining this crucial balance. You are not simply invoking the notwithstanding clause to pass a law — you are challenging the core principles underlying our constitutional democracy,” said the letter.