Just weeks into her new career as an elected politician, Caroline Mulroney finds herself in a tight spot.
Her leader, Doug Ford, head of Ontario’s Progressive Conservative government, is invoking the notwithstanding clause to overrule a judge who blocked his move to slash the size of Toronto city council. Among the critics of the move is respected former premier Bill Davis. Her own father, former prime minister Brian Mulroney, says that he “was never a big fan of the notwithstanding clause.” While he says the clause is “not anti-democratic,” because it’s in the Constitution, he never used it and doesn’t like the idea of governments overruling the courts. “The backbone and the enormous strength of Canada is the independence and the magnificence of our judiciary,” he said this week.
There is more. Ms. Mulroney is not just an ordinary member of Mr. Ford’s cabinet. As Attorney-General, she is responsible for supervising the administration of justice, overseeing criminal prosecutions and advising the cabinet on whether legislation is constitutional and legal. Her ministry’s website explains that an attorney-general has “a constitutional and traditional responsibility beyond that of a political minister.” It’s a unique role, sometimes called “judicial-like” or “guardian of the public interest.”
The explanation goes on: “As chief law officer, the Attorney-General has a special responsibility to be the guardian of that most elusive concept − the rule of law … It is the rule of law that protects individuals, and society as a whole, from arbitrary measures and safeguards personal liberties.”
How does all of this square with Mr. Ford’s decision to brush aside a judge’s ruling that said his Toronto council law was unconstitutional? How can an attorney-general stand meekly by while a premier tells the judiciary he’s the boss (“I was elected. The judge was appointed”)? Did Ms. Mulroney even challenge Mr. Ford when he said he was going to do what no other Ontario premier has done and use the nuclear option − the notwithstanding clause − to get around a judge’s ruling?
The very least she should have done was tell him that, though his use of the clause would be strictly speaking legal and constitutional, it has been used sparingly by Canadian governments out of respect for the Charter of Rights and Freedoms and for the judicial system that her father rightly admires. Pushing through a law reducing the number Toronto councillors to 25 from 47 does not remotely meet the threshold for making a decision as profound as this.
She should also be telling him that his remarks about the judge’s decision are way out of line. Mr. Ford has the right to implement his program − though slashing the size of council was not part of his pitch to voters during last spring’s election campaign − but he should also understand that governments often have their laws reviewed, questioned and sometimes overturned by the judiciary. This is part of our system. Canada is a constitutional democracy, with all the proper checks on government power.
Judges aren’t going rogue or trying to seize power from elected politicians when they rule against a law. They are doing their job.
Of course, not every judicial decision is perfect. Judges sometimes overreach. But if a government doesn’t like it when a law is struck down, it can always go back and revise the law to accord with the Constitution. Or it can appeal to a higher court.
Ms. Mulroney claims there wasn’t time for that. Confronted by reporters about her position on what Mr. Ford has done, she said that, with Toronto’s Oct. 22 election coming up fast, the government had no option but to invoke the notwithstanding clause because its appeal of the judge’s decision might not be heard in time.
But the only reason for the time crunch is that Mr. Ford decided to rush through his law in time for this election. That rush was the main reason the judge overturned the law. The election campaign was already well under way when Mr. Ford dropped his bombshell. The confusion and uncertainty that has followed − Toronto’s city clerk said Thursday she isn’t even sure that she can fairly administer an Oct. 22 vote − is the government’s fault.
Ms. Mulroney is like a rookie forward playing her first professional game in the Stanley Cup final. The pressure must be intense. No doubt she wants to show she is a loyal part of the team. But as Attorney-General, she is not just a member of Team Ford. She stands for the rule of law. She is a guardian of the public interest. She should never forget it.