Notwithstanding Mulroney

Hello Attorney General Mulroney,

As Attorney General of Ontario, you are the chief legal advisor to the Government of Ontario. You are also a lawyer in this province. A few thoughts follow for your consideration regarding the advice you may wish to give and steps you may want to take in light of the decision to invoke the notwithstanding clause.

Section 33 of our Charter of Rights and Freedoms allows the provincial legislature to override sections 2 and 7 to 15 of the Charter. Regarding its use, Peter Hogg has suggested that, “In practice therefore, it seems clear that s. 33 will be used infrequently and only when the legislating government is persuaded that there are powerful reasons of public policy to justify its use.” This is not mandatory, but it is wise and persuasive. Your government’s decision to force through changes to the democratic infrastructure of the City of Toronto certainly does not meet this “Hogg test”, as Doug Ford’s personal vendetta against the council on which he used to serve is hardly a powerful reason of public policy – and I suspect that you know it.

I also think it is important to emphasize that the purpose for which your government intends to invoke section 33 – to force through a radical change in the democratic infrastructure of the City of Toronto, again in the middle of a municipal election – was not saved by section 1 of the Charter. Put another way, such a change cannot possibly be seen as “demonstrably justified in a free and democratic society” as the change that your government is putting forward is a direct affront to the basic democratic infrastructure of that same democratic society at a time when democratic freedoms are most obviously being exercised.  

If this legislation had been proposed outside of a municipal election, there would have been no problem. Proposing it and ramming it through while voters are actually considering their options in spite of what a court has said was its clear violation of the Charter, is exceptionally disturbing – to me, and to every single person with whom I have discussed this matter, it is a clear affront to democracy. 

Note – I think the court's decision was wrong, and that you would succeed on appeal. This is the course you should recommend. But that is not the point. Do not let the fact that the decision was wrong blind you to the madness of the timing of the legislation itself, and the double madness of invoking the notwithstanding clause to protect it!

As a lawyer, you are bound by the Rules of Professional Conduct for lawyers in Ontario. While I can’t see that what you do as the Attorney General could possibly attract law society sanction, there are elements of the rules that are instructive, including this under Integrity…”A lawyer has special responsibilities by virtue of the privileges afforded the legal profession and the important role it plays in a free and democratic society and in the administration of justice, including a special responsibility to recognize the diversity of the Ontario community, to protect the dignity of individuals, and to respect human rights laws in force in Ontario.” You may want to search your conscience to assess whether the planned invocation of the notwithstanding clause to suit Doug Ford’s personal vendetta triggers your special responsibilities to our free and democratic society as noted here.

Section 33 is not supposed to be invoked lightly. And yet, you have apparently already Tweeted agreement with this approach. Given how frivolous is this first ever attempt at using section 33 in Ontario, I suggest that Ford will be as good as his word and he will invoke section 33 on other issues, and you will be front and centre as the key person tasked with implementing his dictates.  If you decide at a later date to resign on a more important issue like restricting the rights of people to free association, or if you resign in order to refuse to support discriminatory legislation, the fact that you did not act in response to the use of section 33 to pursue a personal and bizarre vendetta may mar your professional reputation for the rest of your political and professional life. 

In conclusion, I think you need to reconsider your place in the provincial Cabinet. I have been a conservative my entire life.  I admire your father, and I think you may have a bright political future.  

In life, we don’t always get to pick and choose our hills to die on, and these challenges often come at the most inconvenient times and in the most inconvenient of ways. I strongly suspect that if you want a political future in Ontario, you cannot be part of this, even if you are strictly speaking on the right side of the law. I think you need to at least threaten to resign rather than move the invocation of section 33 in this situation. If this is not pulled back and substituted with an appeal, you need to step aside, secure in the knowledge that you will be able to shine another day.

Best of luck.