Ontario’s most recent Liberal attorney general is urging his Progressive Conservative successor, Caroline Mulroney, against overriding the courts to downsize Toronto council.

Yasir Naqvi, attorney general from 2016 until his party’s defeat in the June 7 election, wrote Mulroney a two-page letter Tuesday imploring her to reconsider the government’s course of action.

“The use of the notwithstanding clause in such a cavalier manner is disturbing,” wrote Naqvi, referring to Premier Doug Ford’s unprecedented decision to overrule the courts by invoking the Charter’s nuclear option.

Ford is doing so to pass Bill 31 — the legislation shrinking Toronto council from 47 to 25 members in the middle of the Oct. 22 municipal election — because the previous legislation, Bill 5, was struck down as unconstitutional by an Ontario Superior Court justice.

Mulroney is appealing the Bill 5 ruling in the Court of Appeal on Tuesday while at the same time Bill 31 is expected to pass on Thursday.

If she wins a stay, the Bill 5 decision will effectively be neutralized and the government will not need to use the notwithstanding clause because Bill 31 won’t be required.

Her predecessor expressed concern with the Tories’ actions.

“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,” he continued.

Naqvi acknowledged that when he was the province’s top lawyer and there were court setbacks, he had to recommend moves that didn’t sit well with premier Kathleen Wynne or other cabinet members.

“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.”

The former attorney general indicated his alarm as Ford “has attacked the honour of our courts, and then invoked the notwithstanding clause to fulfil his personal political agenda.”

“It is understandable that you disagree with a court’s ruling, as many attorneys general have done while in office. But it is difficult to support the manner in which you are addressing the judge’s decision in this instance,” wrote Naqvi.

Worse than the invocation of the notwithstanding clause is Ford’s deriding Justice Edward Belobaba as an “appointed judge” instead of an “elected” politician.

“What is more concerning are actions and statements by the premier and his government that undermine Charter rights, the independence of our judiciary, and the rule of law,” emphasized Naqvi.

“In our system of democracy the legislature is supreme, but it does not have unlimited power. It must act within the confines of the law, especially the Constitution,” he said.

“The courts play an important independent role in providing a check on parliament’s power to make laws.”

Naqvi said he has been speaking with other former attorneys general and “for very good reasons, none of us in Ontario has ever recommended the use of the notwithstanding clause to set aside fundamental freedoms and rights.”

“I respectfully ask you to exercise that power in a manner that strengthens our democracy and its institutions. The current course is doing the opposite,” he said.

“Ontarians, in fact Canadians from coast to coast to coast, are urging you to act now to uphold our Constitution and protect their rights and freedoms by not using the notwithstanding clause in Bill 31. It will cement your legacy as our attorney general.”

Mulroney was not available for comment Tuesday, but during Monday’s overnight Bill 31 debate, which lasted from midnight until 7 a.m., she was unrepentant about using the notwithstanding clause, or Section 33 of the Charter.

Loading... Loading... Loading... Loading... Loading... Loading...

“There is wide consensus … that Section 33, as conceived by those who wrote and approved it, was to be a tool that balanced the role of the courts and the role of the legislature,” she said.

The attorney general argued the controversial provision is “a safety valve, so that legislatures can have the final say on important matters of public policy.”

However, the three main architects of the clause, former justice ministers Jean Chrétien, Roy McMurtry, and Roy Romanow, have publicly denounced the use of it in this case.

Robert Benzie is the Star’s Queen’s Park bureau chief and a reporter covering Ontario politics. Follow him on Twitter: @robertbenzie

Read more about: