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Justice Edward Belobaba of Ontario’s Superior Court ruled that the first version of the law violated candidates’ and voters’ rights to free political expression by curtailing a campaign that had been underway for months. The new version includes a passage saying it’ll operate “notwithstanding” those rights. Section 33 of the Charter of Rights allows legislatures to suspend certain other Charter protections as long as legislators declare explicitly that they’re doing it. No government in Ontario has ever used it.

“As attorney general, you are required to overcome both political and policy considerations in order to uphold the constitution and the rule of law — that is your job above all else,” Naqvi’s letter says.

If Mulroney doesn’t stand in the way of her government’s plans, he writes, she’ll cement her place in history after just a few months in office.

“Over the years, successive governments have faced challenges from the courts,” the letter says. “This includes decisions that have applied the Charter to rule against major government priorities and strike out significant sections of government legislation. And each time this happened it was incumbent that the attorney general provide the best legal analysis to their fellow cabinet ministers and premier. I have had to do that, and trust me this legal advice was not always popular.”

Naqvi’s letter is foursquare on one side of the question of how legitimate it is for a government to use the notwithstanding clause.

The clause is clearly there in the Constitution, in plain English and French. The Progressive Conservatives have said repeatedly that they’re just using a tool that was put into the country’s keystone legal document for a reason: to make sure that elected politicians are ultimately superior to judges.