In the end, Ontario Attorney General Caroline Mulroney may have prevailed in the Court of Appeal, but she certainly has nothing to celebrate.
Last week, the Ontario Court of Appeal found that Doug Ford’s legislative attempt at gerrymandering in Toronto’s election was disruptive and reduced the effectiveness of the candidates’ election messages.
The court also strongly inferred that Ford’s bill was unfair. But unfairness does not make a law unconstitutional. And although the Court of Appeal did not definitively rule Justice Belobaba got it wrong when he found that Bill 5 violated the Charter,it did find that there was a strong likelihood that he was in error.
In the end, Ontario Attorney General Caroline Mulroney may have prevailed in the Court of Appeal, but she certainly has nothing to celebrate. The whole debacle has confirmed two things: Mulroney is a legal lightweight and she is a non-player at the cabinet table.
But first, let’s take a step back and clarify the historical record.
Belobaba’s decision finding Bill 5 unconstitutional was released just after breakfast on Sept. 10. Within a matter of minutes, Ford tweeted: “Re: the judge’s ruling this morning, I’ll have more to say about this at noon. Stay tuned . . . #onpoli.“
This kneejerk reaction left no time for reflection, no time for analysis and certainly no time for Ford to discuss the complex decision with Mulroney.
And at that noon press conference, where Ford announced his hasty decision to take the unprecedented legal step to invoke the Charter’s notwithstanding clause to exempt Bill 5 from constitutional compliance, there was no sign of Ontario’s attorney general.
Mulroney was not in the room when Ford attacked the legitimacy of the “appointed” judge’s decision and began his assault on the role of an independent judiciary. Mulroney was nowhere to be seen when Ford said he would not hesitate to use the notwithstanding clause again.
In fact, Mulroney ghosted the whole province until much later in the day when she tweeted: “s92 of the Constitution makes it clear that the Province has exclusive jurisdiction over municipalities. It’s why we’re appealing the ruling and will be introducing legislation to invoke s33 to deliver on our commitment of smaller, more effective government. #onpoli #forthepeople.”
It is shocking that the chief legal adviser to Her Majesty the Queen in Right of Ontario and, by extension, the Government of Ontario seems to have played no role in Ford’s decision to invoke the notwithstanding clause. It is Mulroney’s job, after all, to provide legal advice to and conduct litigation on behalf of the government. But it appears that she did none of these things. She was either asleep at the wheel or even worse pushed out of the car by Ford.
It is shameful that Mulroney did not firmly and brightly stand up for the judicial system when Ford began throwing shade at judges.
But even more disappointing is the lack of legal depth Mulroney displayed when she finally did speak up.
In her initial tweet, Mulroney seems to conflate the jurisdictional issues with the decision to invoke the notwithstanding clause. No one has ever said that the province did not have the jurisdiction to pass laws that deal with municipal elections. But perhaps Mulroney’s conflation of the issues should not come as a surprise. After all, Mulroney has not really even practiced law that much.
She only renewed her lapsed licences in 2017 — immediately prior to her unsuccessful leadership bid. And she has only ever been licensed to practice law south of the border. She has never been licensed in what should be considered a foreign jurisdiction given her U.S. training — that jurisdiction being Ontario.
Maybe this lack of experience with the Canadian legal system explains her bizarre defense of Ford’s use of the notwithstanding clause in the Ontario legislature, where Mulroney said, “We are using the Charter of Rights and Freedoms to uphold the Constitution.”
Yes, Ford was indeed using the Charter’s notwithstanding clause but not to uphold the Constitution. The reality, apparent even to a legal neophyte, is that Ford was using a provision of the Charter to pass a law that had been found to violate the Constitution.
The fact that the Court of Appeal later expressed skepticism regarding the soundness of Belobaba’s reasoning does not untangle the logic pretzel Mulroney found herself in when defending Ford’s drastic and ultimately unnecessary decision to invoke the notwithstanding clause.
The hypocrisy of Mulroney’s position is even more galling.
She remained silent when Ford attacked the legitimacy of the judicial system. She defended Ford’s use of the notwithstanding clause because municipal elections are a subject of provincial jurisdiction. Mulroney says that, despite the fact the issue was never raised by Ford during the election, the government now has a mandate to forge ahead with Bill 5.
And yet Mulroney has filed a court challenge to the federal government’s carbon tax. Recall that the federal government actually campaigned on the carbon issue. And the federal government has the jurisdiction to implement the carbon tax. And yet Mulroney is asking “appointed judges” to interfere with the democratic will of the people — but only when it suits her.
Hypocritical inconsistency is the hobgoblin of small and politically partisan minds. And Ontario deserves better.
Mulroney is not Doug Ford’s attorney general. She is the attorney general for all of Ontario. It is time she started acting like it.