Notwithstanding clause comes under federal lens following Ford’s move

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NDP justice critic Murray Rankin

OTTAWA — MPs could soon delve into the question of whether it is appropriate for a politician to use the Constitution’s contentious notwithstanding clause to override a court’s decision.

NDP justice critic Murray Rankin says he will formally ask the justice and human rights committee to explore the issue after the Ontario government reached for the rarely used constitutional tool in its bid to slash the size of Toronto city council.

Rankin, the committee’s vice-chair, says while the motion he plans to introduce is prompted by the recent tumult at Queen’s Park, the goal is not to draw attention to one premier or event. Rather, he wants to draw attention to the possibility of “routine and repeated use” of the clause, calling it a matter of grave concern.

The notwithstanding clause gives provincial legislatures and Parliament the ability to usher in legislation that overrides provisions of the Charter of Rights and Freedoms for a five-year period.

Rankin insisted he is not interested in talking about reopening the Constitution, saying he wants to focus on the clause.

“I am talking about an adult conversation, perhaps with constitutional scholars and attorney generals, to see whether we can reaffirm what I believe the drafters of the charter intended, namely that it be used sparingly.”

Rankin said he hopes the committee will hold at least five meetings.

“I’m worried. A premier in one province has indicated he sees no difficulty with its repeated use. I wonder whether other premiers might feel the same way in other provinces.”

The New Democrat MP has had informal discussions with committee colleagues and said they are keeping open minds about his proposal.

Liberal MP Anthony Housefather, the committee chair, said he opposes use of the notwithstanding clause. “I don’t think it should be in the charter.”

But he added the committee will decide whether a study is useful.

Conservative MP Michael Cooper said he is unlikely to support a study.

“The reality is, the notwithstanding clause is part of the charter and it’s part of our Constitution,” said Cooper, adding he supported Ford’s move.

Ontario’s top court sided with the provincial government this week in the legal battle over the size of Toronto’s council.

The appeal court suspended a lower court ruling that found the province’s move to slash council unconstitutional. In turn, that eliminated the Progressive Conservative government’s need to push ahead with a revamped bill on the issue.

Critics attacked the Ford government for invoking the notwithstanding clause to ensure the bill’s passage, but the government now says it won’t move forward with the legislation, given the appeal court decision.

The use or intended use of the notwithstanding clause has political implications, not constitutional ones, said Emmett Macfarlane, a political science professor at the University of Waterloo. As a result, there are no realistic legal limits on the provision that warrant study.

Macfarlane said he does not see a problem with having a conversation on “political norms” surrounding its use, and given that constitutional experts have different perspectives on that aspect, it could lead to an interesting discussion.

Janice Dickson, The Canadian Press