Former Ontario premier Bill Davis: Ford wrong to use notwithstanding clause

By Steve Paikin - Published on September 12, 2018
Bill Davis.
Former Ontario premier Bill Davis says the notwithstanding clause was intended to be used only in "exceptionally rare circumstances."

On Monday, Premier Doug Ford stated that his government would invoke the notwithstanding clause of the Canadian Charter of Rights and Freedoms so that it could proceed with reducing the size of Toronto city council — even though Bill 5, which legislated the reduction, was deemed “unconstitutional” by a Superior Court justice. Most experts say that Ford is on firm legal ground.

But is this what the framers of our constitutional compromise of 1981 had in mind when they added Section 33 to the Charter?

One of the parties to that compromise says no.

As a rule, former Progressive Conservative premier Bill Davis has avoided weighing in on controversial issues since he retired from public life in 1985. He is still interested in political developments but has been content to wield whatever influence he may have almost entirely behind the scenes.

Still, of the 11 first ministers who, 37 years ago, hammered out that historic constitutional compromise, only three are still alive. The 89-year-old Davis is one of them — and he knows what his colleagues had in mind when they created the notwithstanding clause all those years ago.

“Making the Charter a central part of our Constitution, Canada’s basic law, was a deliberate and focused decision by the prime minister and premiers,” Ontario’s 18th premier explained over the phone yesterday.

“The sole purpose of the notwithstanding clause was only for those exceptionally rare circumstances when a province wanted to bring in a specific benefit or program provision for a part of their population — people of a certain age, for example — that might have seemed discriminatory under the Charter.

“The notwithstanding provision has, understandably, rarely been used, because of the primacy of the Charter of Rights and Freedoms for all Canadians. That it might now be used regularly to assert the dominance of any government or elected politician over the rule of law or the legitimate jurisdiction of our courts of law was never anticipated or agreed to.”

This has been another in a week of extraordinary developments. Davis has had ample opportunity over the 33 years since he retired from public life to comment on government policies with which he’s disagreed. He virtually never goes there.

But clearly, Davis sees the Ford government’s decision to use Section 33 as so far outside the bounds of the original spirit of the clause that he’s set aside his normal reservations.

Davis played an essential role in the grand compromise that led to the creation of the Charter of Rights and Freedoms, working with the current prime minister’s father. Yesterday, Justin Trudeau put his concerns to the Ford government’s actions on the record. While clarifying that he wasn’t about to comment on how big he thought Toronto city council ought to be, the PM said, “Every time Charter rights are set aside, it has to be done deliberately, carefully, and with the utmost forethought and reflection. We’re disappointed by the provincial government’s choice.”

Pierre Trudeau’s great nemesis, former prime minister Brian Mulroney, also put his thoughts about Ford’s actions on the record yesterday. Appearing at his first news conference in Ottawa in 19 years, Mulroney confirmed, “it’s not anti-democratic to use it, to invoke it if you’re the elected premier of a given province” — but he added that invoking Section 33 was nothing he ever considered doing and that he couldn’t conceive of any circumstances under which he would have done so.

“I always felt that once the Supreme Court made a decision, that decision strengthened Canada,” he said. “I had difficulty with anybody invoking a provision that could override the Supreme Court of Canada. And that’s why I opposed it then, and that’s why I oppose it today.”

Mulroney’s daughter, Caroline, is now Ontario’s attorney general. The provincial legislature will reconvene this week both to reintroduce the bill reducing Toronto city council’s size and to invoke the notwithstanding clause. Mulroney did not stand alongside Ford at the news conference in which the premier announced his intention to use Section 33, even though it is the most historically important legal decision this government has made so far.                                   

Other former politicians are getting into the mix as well. I was copied on an email sent by Greg Sorbara, Ontario’s former finance minister, urging the prime minister’s office to use its “powers of disallowance” to overrule Bill 5. Technically, the federal government is permitted to “disallow” any provincial law it finds injurious to the national interest. Around Confederation, and for a few decades thereafter, the federal government frequently disallowed provincial laws it didn’t like. But while the power is still on the books, it hasn’t been used since 1943. Trudeau’s principal secretary, Gerald Butts, replied to Sorbara in an email: “Disallowance would trigger a full blown constitutional crisis, which is about the last thing we need as a country right now.” So, while it may technically be legal, it’s clearly not on — although that hasn’t stopped Sorbara from appealing to other former Ontario premiers and attorneys general to come out publicly against Ford’s use of the notwithstanding clause.

It truly has been an extraordinary week in Ontario politics. And the drama shows no signs of abating any time soon.

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