https://www.theglobeandmail.com/canada/ ... o-council/Doug Ford to invoke notwithstanding clause to override judge’s Toronto council ruling
Ontario Premier Doug Ford says he will recall the Legislature and invoke the Constitution’s rarely-used notwithstanding clause to override a judge’s ruling that declared his move to cut Toronto’s council in half a violation of the Charter of Right and Freedoms.
The Premier said he would use the notwithstanding clause, never before invoked in Ontario, to go ahead with his plan to cut city council down to 25 wards from 47, even in the middle of a municipal election. And he warned he could use the clause again, on other issues.
In a ruling released Monday morning, an Ontario Superior Court judge declared Mr. Ford’s move unconstitutional. In his decision, Justice Edward Belobaba calls Mr. Ford's move to cut the number of city councillors "unprecedented" with a campaign under way, declaring that the Premier's intervention "crossed the line."
The judge’s ruling would have reverted Toronto's election to the 47-ward structure for the Oct. 22 election. Toronto’s city clerk issued a statement Monday saying the city was now preparing to go ahead on this basis.
Addressing reporters two hours later than scheduled on Monday afternoon, Mr. Ford criticized the judge and his ruling, which was issued in the morning.
“I believe the judge's decision is deeply, deeply concerning,” Mr. Ford said at a news conference near Queen’s Park on Monday afternoon. “He’s the judge, I’m the premier. He gets to use his tools. I’ll use every single tool to stand up for the people of Ontario.”
Ontario’s legislature will begin to meet on Wednesday in an emergency session to debate and vote on the use of Section 33 of the Charter of Rights and Freedoms, which will override some of the rights of Ontarians for up to five years.
Mr. Ford said the extraordinary move was necessary to follow through with his campaign promise to protect the province’s taxpayers. While the premier did not explicitly campaign on cutting Toronto’s council nearly in half, Mr. Ford said that he would not allow the courts to second-guess what he considers his government’s mandate.
“Democracy is going every four years to elect a government…without worrying about your mandate being overturned,” said Mr. Ford.
“We’re going to fulfill those promises to the people of Ontario, because they are the judge and jury. No one else is the judge and jury with the people of Ontario, except for the people of Ontario.”
Justice Belobaba sided with arguments made by lawyers for the city and some of the candidates who had signed up to run for council who asserted that the move violated their right to free expression under the Charter of Rights and Freedoms – and that the breach could not be justified by the Ontario government.
"The enactment of provincial legislation radically changing the number and size of a city's electoral districts in the middle of the city's election is without parallel in Canadian history," Justice Belobaba wrote.
Justice Belobaba’s ruling said he recognizes the province’s constitutional authority over its municipalities – and may even pass “wrong-headed, unfair or even ‘draconian’ laws," without consultation if it so chooses.
However, the province must still abide by the Charter of Rights and Freedoms. He left aside arguments made by lawyers for the city and for a number of council candidates about “unwritten constitutional principles” of democracy and the rule of law.
But he ruled that Mr. Ford’s changes, referred to as Bill 5, violate the Charter’s free-expression clause both because they were enacted in the middle of an election campaign and they double the average population size of the city’s wards, to 111,000 from 61,000, breaching “the municipal voter’s right to cast a vote that can result in effective representation.”
He said the bill interfered with the candidates’ right to free speech of the most protected kind: political speech.
Bill 5 caused “widespread confusion and uncertainty,” the judge says. “The evidence is that the candidates spent more time on doorsteps addressing the confusing state of affairs with potential voters than discussing relevant political issues,” the ruling reads. “The candidates’ efforts to convey their political message about the issues in their particular ward were severely frustrated and disrupted. Some candidates persevered; others dropped out of the race entirely.”
But Justice Belobaba suggested that even enacting the law six months before the start of the city’s election – instead of three-and-a-half months in – would have nullified the Charter breach: “This midstream legislative intervention not only interfered with the candidates' freedom of expression, it undermined an otherwise fair and equitable election process.”
In finding that the bill also violates the rights of Toronto voters to “effective representation,” Justice Belobaba cited the results of the city’s own extensive ward boundary review, which recommended a 47-ward system to keep up with the city’s population growth and was upheld by the Ontario Municipal Board.
He also concluded that the province failed to provide winning arguments to justify the Charter breach in a “free and democratic society,” as allowed for in the Charter’s Section 1. He said the province provided little evidence for the stated reasons for its move: that Toronto council was “dysfunctional” or that cutting the number of councillors would fix it.
“It appears that Bill 5 was hurriedly enacted to take effect in the middle of the city’s election without much thought at all, more out of pique than principle,” the ruling reads.
Nor was any reason given for addressing the issue of voter parity in the middle of an election, the judge ruled, summing up the province’s evidence in one word: “Crickets.”
Mayor John Tory said the ruling vindicated the city’s decision to challenge Mr. Ford’s council cut.
“We have stood up for Toronto and for our rights as city,” Mr. Tory said. “I have been pushing back against this legislation since it was introduced, because I firmly believe that you can't change the rules in the middle of an election campaign.”
The province’s opposition celebrated the court’s decision and said that it had warned Mr. Ford that his bill aimed at Toronto council was “dangerous for democracy,” according to a statement from the Liberal caucus.
“We urge the government to stop playing with municipal democracy, to obey the court’s ruling and let the elections take place on October 22 in the 47 wards as they should,” said the Liberals in a statement from interim leader John Fraser’s office. NDP Leader Andrea Horwath was expected to comment on the court’s decision later in the afternoon.
Mr. Tory’s main rival, former chief planner Jennifer Keesmaat, came out swinging against Mr. Tory after the ruling. She jumped into the race after seeing his reaction to Mr. Ford’s announcement of the move in July, when the mayor called for a referendum on the matter.
“While today’s ruling is good news, we didn’t have to get here,” Ms. Keesmaat said in a statement issued on Monday. “When the chips were down, John Tory didn’t have our city's back and this entire episode has shown us that we need new leadership at City Hall – leadership that will stand up for Toronto when it matters most – that’s why I decided to run to be your Mayor.”
Mr. Tory shot back, dropping a reference to Ms. Keesmaat’s tweets after Mr. Ford’s July announcement, when she called for Toronto’s “secession” – something she has subsequently said was not a policy position but remarks made in frustration. He also said he called in lawyers for advice and that at council he took a “leadership role” in calling for a legal challenge.
“I think this [Ms. Keesmaat’s statement] is a feeble attempt to deflect attention away first of all from her response at the time, which was that Toronto should secede from Ontario,” Mr. Tory said. “ … I stood up from the beginning and said this was being rammed down our throats in the middle of an election.”
An expert on municipal law said he was “dumbfounded” by the ruling.
“I think there was quite a bit of shock today,” said John Mascarin, a partner at Toronto law firm Aird & Berlis LLP. “I really didn’t think that the judge would come in and say it breached the Charter. I thought he was going to rely strictly on Section 92 of the Constitution Act and say it’s within the jurisdiction of the province to do it. But he didn’t.”
Mr. Mascarin said that the immediate effect of the ruling was to halt only this legislation, but that its significance could ripple across the country.
“I think it certainly is a ruling that’s going to be looked at nationally, because every jurisdiction of course is set up like Ontario,” he said. “The province or the territory sets the rules for the municipalities. So it clearly says, while there is broad authority there, they have to be careful in how that exercise that power.”
Justice Belobaba's ruling comes after a day-long hearing Aug. 31 before a packed public gallery, where the judge told his courtroom he had no idea which way his ruling would go.
The province argued that cities are created by provincial legislation and have no constitutional status, and that Queen’s Park is well within it rights to redraw Toronto’s ward boundaries – even with an election under way.
Bill 5, the Better Local Government Act, was rushed through the Ontario Legislature and passed Aug. 14, even though campaigning for Toronto’s municipal election began May 1. The move reduced the number of wards to 25 from 47, using the federal and provincial riding boundaries instead of new wards approved by the city and the Ontario Municipal Board after a four-year review.
While the idea was never mentioned during the campaign before the June 7 provincial vote that put Mr. Ford into power at Queen’s Park, the former Toronto councillor and mayoral candidate had long held that Toronto’s “dysfunctional” council needed to be cut down in size.
The Toronto District School Board was granted intervenor status in support of the city’s legal challenge to overturn the Ford government’s legislation. The TDSB had voted earlier this year to adjust its 22 trustee ward boundaries to align with the 47 city councilor wards. Robin Pilkey, the TDSB’s chairwoman, said on Monday that she was pleased with the court’s decision.
“We have said since day one that to change Toronto’s electoral boundaries in the middle of an election and without any opportunity for public input is unfair and not reflective of reasonable public expectations for consultation,” she said.
Ford gets a majority, but loses in Toronto.
In retaliation he decides to cut the city council in half (since the majority of council is usually left-leaning) despite being in the middle of the election season, and despite nothing of the sort being mentioned in his campaign. Or even mentioned to his own support base.
Judge rules that while overall Ford can do what he wants to the city, cutting the council size in half in the middle of an election campaign is unconstitutional.
Ford immediately decides to go nuclear and use the notwithstanding clause even though all the judge told him to do was wait until after the election. Or wait for the appeal process.
Ford also mentions that he will not hesistate to use the notwithstanding clause on other court decisions that go agaisnt the "will of the people" aka against things that he wants passed. At a minimum this will likely inlucde the current court challenge over his revamped sex-ed curriculum, (where wants to return it to the good ol' days of "Sex is bad and Gays have AIDS").
Naturally his support base is lapping it all up, which will embolden him to use it whenever he feels like it. Presumably this will also have a big impact on the courts as judges will hesitate to issue ruling against Ford lest he use the notwithstanding clause to make it all moot (for 5 years anyways).
And all of this in just 3 months of being in office! We're in for some interesting times.
Edit: I am not necessarily against the idea of reducing council size (at least for city-wide votes and issues), but the implementation is horrid.