In response to Doug Ford’s open willingness to invoke the notwithstanding clause to push through with his plan to cut the size of Toronto City Council, law professors across Ontario, including many from the University of Toronto, issued a response entitled “The Notwithstanding Clause – Only in the Last Resort.”
Written primarily by U of T law professor Brenda Cossman and co-signed by over 80 different professors, the letter takes issue with the Ford government’s near use of the notwithstanding clause. The letter claims that the framers of the constitution believed that the notwithstanding clause should only be used in exceptional circumstances.
“Premier Ford, you have stated that you will not allow the courts to override your political mandate,” the letter reads. “You have pointed out that you are elected, while the judge who ruled against Bill 5 was appointed. This is not simply a matter of disagreeing with a court ruling. Rather, you have claimed that a majority government can not only ignore court rulings, but that it is also free to set aside constitutional rights.”
The letter points out that the notwithstanding clause has only been used in two provinces — Saskatchewan and Québec — and has been attempted in Alberta and Yukon.
“We recognize that it is entirely within your government’s power to invoke the notwithstanding clause. But it should never be the first resort – it should be the last. The notwithstanding clause must be the exception – not the rule,” the letter concludes.