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When one Canadian province decides to opt out of the Charter of Rights and Freedoms, you expect prime ministers to speak out strongly.
But it probably tells us something that the most spirited words against the use of the “notwithstanding” clause this week have come from a former prime minister, not the current one.
But it probably tells us something that the most spirited words against the use of the “notwithstanding” clause this week have come from a former prime minister, not the current one.
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It was Brian Mulroney who came out swinging on Tuesday against the idea of provinces sidestepping the Charter — “how the hell did this thing get in our Constitution?” — while the current prime minister seemed to be trying to say as little as possible.
While Justin Trudeau can be hard line about people adhering to the Charter of Rights when it comes to summer-job applications or candidacy for the Liberal party, it took the prime minister more than a day after Premier Doug Ford’s staggering announcement on Monday to say anything publicly. And when Trudeau did speak on Tuesday, he chose a relatively mild adjective: “disappointing.”
Mulroney, on the other hand, seems to feel fewer constraints, despite a potentially awkward family conflict.
While Justin Trudeau can be hard line about people adhering to the Charter of Rights when it comes to summer-job applications or candidacy for the Liberal party, it took the prime minister more than a day after Premier Doug Ford’s staggering announcement on Monday to say anything publicly. And when Trudeau did speak on Tuesday, he chose a relatively mild adjective: “disappointing.”
Mulroney, on the other hand, seems to feel fewer constraints, despite a potentially awkward family conflict.
In a free-wheeling conversation at the National Library and Archives on Tuesday, Mulroney made abundantly clear that he has never been a fan of this opt-out provision in the Charter — and he’s no more fond of it now that it’s being used in a province where his own daughter, Caroline Mulroney, is the attorney-general.
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“Everybody knows I’m not a big fan of it and I never have been,” Mulroney said, while sidestepping any direct criticism of his daughter’s government. “Look, to me, the backbone and the enormous strength of Canada is the independence and the magnificence of our judiciary. … That is a major thrust of our citizenship.”
Mulroney said he hasn’t discussed this with his daughter, but she probably already knows how he feels, since it’s also in his memoirs, as “the most abject surrender of federal authority in our history.”
Mulroney said he hasn’t discussed this with his daughter, but she probably already knows how he feels, since it’s also in his memoirs, as “the most abject surrender of federal authority in our history.”
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That’s a shot at former prime minister Pierre Trudeau, who put the clause into the Charter to win a deal with the provinces nearly 40 years ago. He’s also the father of the current PM, of course — all this proving that constitutional dramas in Canada are also historical family sagas, minus the lush scenery or film deals.
Mulroney, seemed to be enjoying the freedom to speak out against populist politics during his Ottawa appearance on Tuesday— and the audience, including reporters, were enjoying it right back. Some of his answers seemed to be barely veiled shots, for instance, at President Donald Trump, with whom he’s had a long social relationship.
Flatly, Mulroney said he doesn’t like the kind of current brand of politics that “plays to the base.”
“It’s the bane of the existence of anyone with a brain in his head,” Mulroney said. “You see this happening south of the border, it’s always about the base. So you’re not providing leadership, you’re listening to what your base tells you to do.”
The same of course could be said of some of Premier Ford’s brand of politics, including this use of the notwithstanding clause. But Mulroney obviously can’t be going around criticizing his daughter’s boss.
Trudeau doesn’t have the same family conflict, but he may be avoiding a collision with Ford because of Trump. Managing that “rough patch,” as Mulroney described the past few months of the Trump-Trudeau relationship on Tuesday, may be all the populist battles that Canada’s prime minister can handle right now.
Or maybe Trudeau is waiting for a chance to pick his own battle, on his own terms, with the Ontario premier — though you’d think that the Constitution would be something that someone called Trudeau would be keen to defend. His father, Pierre, wasn’t shy about criticizing Mulroney when he thought the power of the Constitution was getting diluted in the 1980s.
Then again, perhaps the Charter and the Constitution are easier for former prime ministers to defend.
Susan Delacourt is the Star’s Ottawa bureau chief and a columnist covering national politics. Reach her via email: sdelacourt@thestar.ca or follow her on Twitter: @susandelacourt
Mulroney, seemed to be enjoying the freedom to speak out against populist politics during his Ottawa appearance on Tuesday— and the audience, including reporters, were enjoying it right back. Some of his answers seemed to be barely veiled shots, for instance, at President Donald Trump, with whom he’s had a long social relationship.
Flatly, Mulroney said he doesn’t like the kind of current brand of politics that “plays to the base.”
“It’s the bane of the existence of anyone with a brain in his head,” Mulroney said. “You see this happening south of the border, it’s always about the base. So you’re not providing leadership, you’re listening to what your base tells you to do.”
The same of course could be said of some of Premier Ford’s brand of politics, including this use of the notwithstanding clause. But Mulroney obviously can’t be going around criticizing his daughter’s boss.
Trudeau doesn’t have the same family conflict, but he may be avoiding a collision with Ford because of Trump. Managing that “rough patch,” as Mulroney described the past few months of the Trump-Trudeau relationship on Tuesday, may be all the populist battles that Canada’s prime minister can handle right now.
Or maybe Trudeau is waiting for a chance to pick his own battle, on his own terms, with the Ontario premier — though you’d think that the Constitution would be something that someone called Trudeau would be keen to defend. His father, Pierre, wasn’t shy about criticizing Mulroney when he thought the power of the Constitution was getting diluted in the 1980s.
Then again, perhaps the Charter and the Constitution are easier for former prime ministers to defend.
Susan Delacourt is the Star’s Ottawa bureau chief and a columnist covering national politics. Reach her via email: sdelacourt@thestar.ca or follow her on Twitter: @susandelacourt
By Susan Delacourt National Columnist
Tues., Sept. 11, 2018
Ottawa ‘disappointed’ with Ontario’s decision to invoke the notwithstanding clause, Trudeau says
By Bruce Campion-SmithOttawa Bureau
Tues., Sept. 11, 2018
OTTAWA—Prime Minister Justin Trudeau says it’s “disappointing” that Ontario Premier Doug Ford has invoked the “notwithstanding” clause of the Charter of Rights and Freedoms to push ahead with his plan to shrink Toronto council but suggests that Ottawa will remain on the sidelines in the bitter debate.
Ford announced his government’s move Monday, just hours after a Superior Court judge ruled that Ontario legislation to cut the size of council to 25 from 47 councillors was unconstitutional.
Ford announced his government’s move Monday, just hours after a Superior Court judge ruled that Ontario legislation to cut the size of council to 25 from 47 councillors was unconstitutional.
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Speaking in Winnipeg Tuesday, Trudeau said that Canadians value the charter and its protections against “governments that overreach.
“So anytime a government chooses to invoke the notwithstanding clause to override the charter’s protections, it has to be done deliberately, carefully and with the utmost forethought and reflection,” the prime minister said.
But Trudeau suggested that his government won’t get involved.
“So anytime a government chooses to invoke the notwithstanding clause to override the charter’s protections, it has to be done deliberately, carefully and with the utmost forethought and reflection,” the prime minister said.
But Trudeau suggested that his government won’t get involved.
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“We’re disappointed by the provincial government in Ontario’s choice to invoke the notwithstanding clause, but I won’t be weighing in on the debate on how big Toronto municipal council should be,” he said.
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“I will trust that Ontarians will reflect whether or not the provincial government made the right decision on overriding the Charter of Rights and Freedoms on this issue,” said Trudeau, who met with Toronto Mayor John Tory on the topic Monday.
The clause was intended to give Ottawa or the provinces a mechanism to overrule Charter rights that conflict with their legislative agenda.
The clause was intended to give Ottawa or the provinces a mechanism to overrule Charter rights that conflict with their legislative agenda.
Article Continued Below
Trudeau’s comments follow a statement Monday by Dominic LeBlanc, the federal intergovernmental affairs minister, who said the notwithstanding clause is an “extraordinary” part of the Constitution and should only be used in the “most exceptional” of cases.
Liberal MP Adam Vaughan, who served on Toronto council before moving to federal politics, said it was too soon to say whether Ottawa would get involved in the case but said his government would be watching the situation carefully to ensure cities are protected.
“The vulnerability of cities and our relationship with cities, which we’ve worked very hard to elevate, is clearly at risk. Cities are at risk,” Vaughan told the Star in an interview from Saskatoon, where he is attending a Liberal caucus meeting.
“We have to be respectful of provincial jurisdiction but at the same time we have to be responsible to the Canadians who live in cities,” he said.
“So we’re looking at it very carefully around what we can and should do,” Vaughan said.
But the MP for Spadina-Fort York was wary too about setting precedents if Ottawa moved on legal action around Ontario’s use of the notwithstanding clause.
“It sets the federal government up as a court of appeal on all provincial legislation across the entire country,” he said.
“That being said, until we see the legislation … it’s very hard to say what should or shouldn’t be the response,” he said.
Michael Pal, director of the public law group at the University of Ottawa’s faculty of common law, said that the Trudeau government is taking the right approach to voice caution about the use of the notwithstanding clause but avoid direct intervention.
“Is there a really immediate legal mechanism that the federal government has to stop this? The answer is no,” Pal said in an interview Tuesday.
“And as a general matter, you don’t want the federal government necessarily intervening in municipal, City of Toronto elections,” he said.
Pal said the government is right to signal that the clause should be reserved for the “rarest and clearest and most important of cases.”
“To normalize the use of the notwithstanding clause, in relation to political expression, that is very likely to have bad consequences down the road,” he said.
In theory, the federal government could respond with its own rarely employed constitutional weapon — under the Constitution, it can disallow a provincial statute.
But Pal said suggestions that Ottawa should use this to thwart Ford’s plan is a “non-starter” saying that disallowance provision is virtually defunct
“No one seriously thinks it could be used today,” he said. “It’s not a door we want to open in a healthy federation.”
Bruce Campion-Smith is an Ottawa-based reporter covering national politics. Follow him on Twitter: @yowflier
Liberal MP Adam Vaughan, who served on Toronto council before moving to federal politics, said it was too soon to say whether Ottawa would get involved in the case but said his government would be watching the situation carefully to ensure cities are protected.
“The vulnerability of cities and our relationship with cities, which we’ve worked very hard to elevate, is clearly at risk. Cities are at risk,” Vaughan told the Star in an interview from Saskatoon, where he is attending a Liberal caucus meeting.
“We have to be respectful of provincial jurisdiction but at the same time we have to be responsible to the Canadians who live in cities,” he said.
“So we’re looking at it very carefully around what we can and should do,” Vaughan said.
But the MP for Spadina-Fort York was wary too about setting precedents if Ottawa moved on legal action around Ontario’s use of the notwithstanding clause.
“It sets the federal government up as a court of appeal on all provincial legislation across the entire country,” he said.
“That being said, until we see the legislation … it’s very hard to say what should or shouldn’t be the response,” he said.
Michael Pal, director of the public law group at the University of Ottawa’s faculty of common law, said that the Trudeau government is taking the right approach to voice caution about the use of the notwithstanding clause but avoid direct intervention.
“Is there a really immediate legal mechanism that the federal government has to stop this? The answer is no,” Pal said in an interview Tuesday.
“And as a general matter, you don’t want the federal government necessarily intervening in municipal, City of Toronto elections,” he said.
Pal said the government is right to signal that the clause should be reserved for the “rarest and clearest and most important of cases.”
“To normalize the use of the notwithstanding clause, in relation to political expression, that is very likely to have bad consequences down the road,” he said.
In theory, the federal government could respond with its own rarely employed constitutional weapon — under the Constitution, it can disallow a provincial statute.
But Pal said suggestions that Ottawa should use this to thwart Ford’s plan is a “non-starter” saying that disallowance provision is virtually defunct
“No one seriously thinks it could be used today,” he said. “It’s not a door we want to open in a healthy federation.”
Bruce Campion-Smith is an Ottawa-based reporter covering national politics. Follow him on Twitter: @yowflier
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