OTTAWA—Former prime minister Jean Chrétien, retired chief justice of Ontario Roy McMurtry and former Saskatchewan premier Roy Romanow — political heavyweights instrumental in the creation of the Constitution’s notwithstanding clause — are condemning Ontario Premier Doug Ford for using the controversial measure to overrule a provincial court.

In a joint statement to the Star on Friday, the trio spelled out how the rarely-used clause was meant to be invoked in “exceptional situations, and only as a last resort after careful consideration.”

Ford’s use of the clause — to override a court ruling Monday that found the Progressive Conservative government’s bill to slash the size of Toronto city council violated the Charter of Rights and Freedoms — “does not meet this criteria,” they said, daring Conservative MPPs and ministers to defy their premier.

“We condemn his actions and call on those in his cabinet and caucus to stand up to him,” they said.

“History will judge them by their silence.”

The former politicians added their voices to a chorus of opposition to the Ford government’s use of the notwithstanding clause that includes former prime minister Brian Mulroney, former Ontario premier Bill Davis, current Prime Minister Justin Trudeau, Toronto Mayor John Tory and more. On Wednesday at Queen’s Park, protesters heckled from the viewing gallery of the legislature, and opposition New Democrats were removed for disrupting the proceedings as the Progressive Conservative government introduced a new bill to cut Toronto city council from 47 wards to 25.

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Two days earlier, Ontario Superior Court Justice Edward Belobaba ruled the plan to slash the size of council during the middle of the municipal election campaign was unconstitutional. The judge called that move “unprecedented” and said it “substantially interfered” with Torontonians’ right to freedom of expression that is guaranteed by the Charter.

Ford responded by invoking the notwithstanding clause, which is found in Section 33 of the charter, and re-introducing the bill under a different name in the Ontario legislature. He argued his government has the right to overrule the Ontario judge because it was elected, while the judge was appointed. The clause gives the provinces and Ottawa the power to overrule Charter rights that conflict with a government’s legislative agenda.

But Chrétien, McMurtry and Romanow said in their statement that Ford is misusing the clause. The three men were justice ministers for Canada, Ontario and Saskatchewan during the negotiations that created the Charter in 1981: Chrétien was then justice minister in Pierre Trudeau’s Liberal government, while McMurtry was Ontario’s Progressive Conservative attorney general and Romanow was deputy premier and attorney general for the NDP administration in Saskatchewan.

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“It was not designed to be used by governments as a convenience or as a means to circumvent proper process,” they said.

“That was clear at the time, and it has been clear ever since. That is one reason it has never been used — even once over the last 37 years — by the Ontario legislature, a point of pride with the people of Ontario.”

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