Analysis

Why Trudeau's willing to let Ford deploy the notwithstanding clause

Doug Ford is nothing if not blunt. He also might be pretty adept at sparking a constitutional conflict.

The PM could stop the premier in his tracks. He's got good reasons not to.

Ontario Premier Doug Ford greets Canadian Prime Minister Justin Trudeau at the Ontario Legislature on Thursday, July 5, 2018. (Chris Young/Canadian Press)

Doug Ford is nothing if not blunt. He also might be pretty adept at sparking a constitutional conflict.

That the Ontario premier plans to use the notwithstanding clause for the first time ever in Ontario — to ignore a court ruling that blocked his plan to chop Toronto City Council in half — is proof of both statements.

He's launched a field day for political commentators and municipal politicians. And he just might have inadvertently put Prime Minister Trudeau in an awkward spot.

Mayors across the country are using Ford's decision as an opening to demand constitutional recognition of municipal governments.

Pundits are decrying the very idea that the premier would think of triggering a clause intended as a fail-safe, an option of last resort when confronted by judicial excess — particularly over a question as petty as how many Toronto city councillors there should be.

Still others take exception to Ford's repeated claim at his Monday news conference that an appointed judge is less legitimate than an elected government. They also bristle at his warning that he's fully prepared to use the notwithstanding clause again.

Trudeau won't engage

Prime Minister Trudeau, speaking in Winnipeg Tuesday, declined to weigh in on the question of how big Toronto's city council should be. But he spoke of the important role the courts play in defending Canadians' rights.

"I will trust that Ontarians will reflect on whether or not the provincial government made the right decision on overriding the Charter of Rights and Freedoms on this issue," he said.

PM Justin Trudeau expresses his displeasure at Ontario Premier Doug Ford's decision to invoke the nothwithstanding clause to overrule a judge's decision on the size of Toronto city council. 1:09

Justice Edward Belobaba ruled this week that the Ford government's city council bill infringed upon the right of voters and candidates to free expression.

Former prime minister Brian Mulroney — whose daughter Caroline is Ontario's attorney general — said Tuesday that he was never a big fan of the notwithstanding clause and was never himself tempted to use it.

"To me, the backbone and the enormous strength of Canada is (the) independence and magnificence of the judiciary," he told reporters, adding he hadn't spoken to his daughter about the decision.

Former Prime Minister Brian Mulroney spoke in Ottawa on Tuesday 2:06

Under S. 92(8) Constitution, municipalities are creatures of the provinces. They have no independent status. Changing that would require a constitutional amendment. There's no indication any premier, let alone the prime minister, wants to get into that.

But Ottawa has another weapon at its disposal — one just as blunt, and politically explosive, as the notwithstanding clause.

Under the Constitution, the federal cabinet can disallow any act of a provincial legislature. Ottawa could, in other words, simply disallow Ford's council-chopping legislation — notwithstanding his use of the notwithstanding clause.

Disallowing disallowance

Carissima Mathen, a constitutional law professor at the University of Ottawa, said she believes Trudeau when he says the federal government will not intervene in this case to do to Ford's government what Ford is trying to do to Toronto.

"It undermines the democratic legitimacy of the provinces," she said. "It's far better to allow a province to face the responsibility of passing bad laws than to destroy any cooperation at the federal/provincial level that allows Confederation to work."

Actually, the disallowance power has been used more than 100 times since 1867 to overturn laws passed by every province except Prince Edward Island and Newfoundland and Labrador.

Mathen said most of those cases date back more than a century. And even though the Supreme Court of Canada upheld cabinet's authority to disallow provincial laws in a 1930s reference case, no federal government has used it in the last 75 years.

"The political consequences are just too severe."

Liberal MP Adam Vaughan represents a downtown Toronto riding. He said the disallowance power has only been used in the past to prevent provincial governments from passing laws in areas of federal jurisdiction.

"It's not a faint hope clause and it's why federal governments have been loath to respond to every hot-button issue."

And Trudeau's government already has enough challenges in dealing with the provinces.

How will Toronto react?

His government is vowing to go ahead this fall and impose a price on carbon on any province that refuses to act on its own. Ottawa wants to facilitate an agreement to get rid of trade barriers between the provinces. And then there's the emerging squabble over equalization sparked by Saskatchewan — and, yes, Doug Ford's Ontario — to change the formula so that their provinces aren't always paying in while getting nothing in return.

'We're sending a signal...we will not sit idle,' says Stephen Lecce, parliamentary assistant to Premier Ford. 10:04

On the other hand, Toronto and its 25 ridings will be a key battleground in next fall's federal election. Will Trudeau's Liberals pay a political price there for not picking a fight with Ford, or standing up for Toronto voters opposed to his plan to shrink the size of council and thwart the independent judiciary?

Vaughan said he doesn't think so. He said the Trudeau government already has established direct ties with municipalities, transferring money for infrastructure projects and housing without going through Ford's government. "We will continue to step up to ensure that Toronto is treated as an equal level of government."

Greg MacEachern agrees. He's a Liberal strategist and senior vice-president of Proof Strategies in Ottawa.

"Having a bunch of voters angry with Doug Ford in Toronto doesn't require the federal Liberals to do anything," he said. "He's made his decision. Let him wear it."

And Doug Ford is wearing it. In fact, he seems more than comfortable with the fit.

About the Author

Chris Hall

National Affairs Editor

Chris Hall is the CBC's National Affairs Editor and host of The House on CBC Radio, based in the Parliamentary Bureau in Ottawa. He began his reporting career with the Ottawa Citizen, before moving to CBC Radio in 1992, where he worked as a national radio reporter in Toronto, Halifax and St. John's. He returned to Ottawa and the Hill in 1998.