Decision expected today in Toronto council legal challenge

Jan Cross
September 13, 2018

Ontario Premier Doug Ford says he will override Canada's Constitution to overturn a court decision that ruled his move to redraw Toronto's political boundaries in the middle of the city's municipal election is "unconstitutional".

Ontario's Liberals called Ford's decision to invoke the notwithstanding clause unreasonable and said it would lead to "chaos and constitutional mayhem" in Ontario.

Meanwhile, Ford has contended that Tory did have advanced knowledge of his plans and hinted that he may have even given them his implicit endorsement, telling reporters on Monday that the mayor "says one thing behind closed doors and then says something totally different in front of the cameras".

"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", Belobaba said in his written decision.

Official Opposition Leader Andrea Horwath is calling Doug Ford's vow to invoke the notwithstanding clause and suspend part of the Canadian Charter of Rights and Freedoms for Ontarians an unprecedented abuse of power.

"I was elected, the judge was appointed", Ford said, implying the courts have no legitimacy to strike down unconstitutional laws.

This was Bill 5, the Better Local Government Act. "We can and will defend our public services and rights in this province", said Buckley. "These councillors worry about themselves and holding on to power".

The Canadian Taxpayers Federation, which was one of several intervenors in the legal challenge in support of Bill 5, called the judge's ruling a disappointment and encouraged the Ford government to appeal.

"It is the people who will be the ultimate judges of our performance".

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On Monday morning, Justice Edward Belobaba of the Ontario Superior Court found that the Progressive Conservatives' Bill 5, the Better Local Government Act, violated Section 2 of the Charter of Rights and Freedoms, which guarantees freedom of expression - which itself includes, Belobaba declared, the right to meaningfully participate in municipal elections.

Bill 5 cut the size of Toronto's city council from 47 seats to 25, aligning them with federal ridings, despite the fact that the campaign for the October 22 election was already underway. "Justice Belobaba is an experienced and highly regarded judge, and his ruling is a carefully reasoned and thoughtfully crafted vindication of core constitutional rights". Nevertheless, Belobaba argued "there is no principled reason why in an appropriate case the (right to "effective representation" under Section 3) can not inform other related Charter provisions such as the voter's right to freedom of expression under Section 2 (b)" in a municipal election.

The government announced the plan in July, during the city's municipal election campaign - a move that Belobaba said "cannot be demonstrably justified in a free and democratic society". "The province has clearly crossed the line".

Tory likened Ford's use of the notwithstanding clause to resurrect Bill 5 to "wielding a sledgehammer to crush a fly".

"The notwithstanding clause was put there for very extraordinary circumstances and very extraordinary instances and you'd have to ask yourself why does this change, this particular change at this time, qualify as one of those", Tory said. "This has been used only a handful of times across this country".

"Hopefully this win for democracy will be respected by Premier Ford and his government members so that the City of Toronto can proceed with its democratic elections this fall".

Ford had argued it would improve decision-making on the council.

University of Toronto professor Nelson Wiseman said candidates will need to assume that the 25-ward structure will be in place because once Ontario uses the notwithstanding clause and passes Bill 5 again there are few options left for the city.

"We also disagree with the court's finding that larger wards necessarily undermine voters' right to effective representation, as Torontonians are already represented at the federal and provincial levels in these larger districts".

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