Liberal Justice Critic Nathalie Des Rosiers is asking the Attorney General Caroline Mulroney to resign in light of the decision by Premier Ford to use the notwithstanding clause in Bill 5.
The use of the Notwithstanding clause is a serious matter, reserved for exceptional cases. Furthermore, it cannot be done retroactively. The decision of the Premier risks creating a constitutional crisis in Ontario and he must be stopped. If he is not listening to his Attorney General, whose job it is to preserve the constitutional order, the Attorney General has no choice but to resign.
The Notwithstanding clause is an exceptional tool which must be reserved for emergency or long standing disagreement between courts and legislatures. It should not be used cavalierly pending an appeal. This embroils the courts in a political game.
Bill 5 contains dispositions that have retroactive effects since it changes the rules during an electoral period. The bill that Premier Ford will table tomorrow with the use of the notwithstanding clause will also require retroactive aspects, with respect to the 2018 electoral period and nomination dates. There is certainly a risk that litigation relating to this retroactive aspect could again cloud the upcoming election.
There is an election in Toronto on October 22nd. Premier Ford wants to be for only 25 people as opposed to 47. The merits of this policy are not at stake here. It may or may not be a good idea. However, the Superior Court has decided that imposing this change in the middle of an election campaign violates the rights of both candidates and voters. He also concluded that the government did not present sufficient evidence to justify this violation.
The Premier does not agree with the decision. However, he has an obligation to respect it and use his political tools in a responsible manner. Using the notwithstanding clause to change the rules of a municipal elections is wrong. The retrospective aspects of the changes will also raise the prospect of an ‘’unconstitutional’’ notwithstanding declaration.
Enough is enough. The Attorney General should ensure a minimum of order in legislative affairs in Ontario. She should tell Premier Ford to forget about Toronto municipal elections and start governing for the province. Using the notwithstanding clause is a dangerous tool for our constitutional democracy. It should not be used in this case.
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