MidlandToday received the following letter from former Conservative Cabinet Minister Doug Lewis in regard to Doug Ford's decision to invoke the notwithstanding clause.
In the fall of 1982, Prime Minister Pierre Trudeau introduced the Canada Constitution Act in Parliament. The Act was introduced with very little public consultation.
Needless to say, as it was new and ground breaking, it immediately became the subject of a great deal of public debate, as well as in Parliament.
The provinces took the federal government to court based upon the theory that the Government of Canada had a duty to consult the provinces. The Supreme Court of Canada held that although there was no law requiring that the Government of Canada consult the provinces, there was a constitutional convention that the provinces be consulted.
That forced consultation with the provinces which resulted in amendments to the Constitution Act. One of those amendments was the introduction of the “notwithstanding clause” which gave a province the right to opt out of the provisions of the Constitution Act by invoking that clause.
Based on my participation as Deputy Opposition House Leader during that time, I do not believe that the Constitution Act would have been passed without that amendment and others. The Constitution Act was a legislative package of what was possible at the time. Even now I don't believe that you could amend the Constitution Act to remove the “notwithstanding clause.”
The Progressive Conservative Government of Ontario now seeks to use the “notwithstanding clause” for the first time. That use has been described as the “nuclear option” and “blatantly political” by opponents and constitutional purists who would have you forget how the Constitution Act came about.
The Constitution Act wouldn't exist without it! So why can't it be used?
Specifically, the Ford government is trying to amend the Elections Act to prevent the misuse of funds by political interest groups that want to advertise their position ahead of a provincial election next year.
An Ontario judge ruled (last) week that a previous legislative effort was unconstitutional. An appeal to the Ontario Court of Appeal and then to the Supreme Court of Canada would take years to process.
That's the Constitutional argument. Watch for opponents of the use of the “notwithstanding clause” to switch to the argument that the Ford Government is “shutting down democracy by curtailing free speech”. That is a traditional debating tactic. If you have lost one argument switch to another.
The heat will be turned up. That will be healthy. I predict history will repeat itself. The “notwithstanding clause” will survive.
Remember, there is a political safety valve in our democratic process. The Ford government will have to go to the people after using the “notwithstanding clause.”
The voters will decide whether its usage was such an affront to democracy, not the courts.