There are legal experts who are not convinced by Ontario Superior Court Judge Edward Belobaba's ruling overturning Premier Doug Ford's Bill 5 -- the bill that reduces Toronto's city council from 47 to 25 members.
Those experts are surprised Judge Belobaba believes the negative impact of Bill 5 on the right of free expression in Toronto would be so severe he is compelled to strike down the legislation in its entirety.
Indeed, Belobaba's ruling is, to many, a startling judicial decision, and it would be possible to craft a nuanced, constitutionally coherent case against it. But that is not what Doug Ford is doing.
As they hastily reintroduce Bill 5, this time invoking the notwithstanding clause, Ford and his acolytes do not offer reasoned legal or constitutional arguments. Instead, they engage in ad hominem attacks, simplistic and illogical arguments, and non-sequiturs.
Ford says he was elected while Judge Belobaba was not. The premier points to the 2.3 million who voted for his party in the recent election, but conveniently fails to mention the nearly 3.3 million who voted NDP, Liberal and Green. All three opposition parties oppose Bill 5.
The premier says he is defending democracy, exemplified by elected politicians, against judge-made law. He then attacks left-of-centre Toronto city councillors, members of what he calls the "downtown elite." This past Wednesday, in the legislature, Ford even broke with long-established precedent and named three of those dreaded elitists, councillors Mike Layton, Joe Cressy and Gord Perks. All three, like Ford, were democratically elected.
Ford's Conservatives say every constitutional expert whom they consulted told them Bill 5 was sound and immune to challenges -- but they then refuse to name any of those experts or cite any of their arguments. Ford claims cutting city council in half would save $25 million, but offers zero facts or figures to support that claim.
Why should much smaller Ottawa have 23 councillors to Toronto's 25?
More fundamentally, the Conservatives have offered no principle for municipal governance to justify cutting democratic representation for the people of Toronto. Ford's party has never advocated that, as a rule, municipal councils should all be smaller than they are now. Indeed, Bill 5, the "Better Local Government Act," only deals with local government in a single city, Toronto.
When asked if Ontario's second-largest city, Ottawa, could find its city council cut in the near future, both Ford and Ottawa-based Conservative cabinet minister Lisa MacLeod said no. Ottawa has 23 councillors for a population about a third of Toronto's. Ford wants Toronto's council to be reduced to 25, which would give the much larger city only two more councillors than Ottawa.
Ford does not offer any rationale for sparing the federal capital. In truth, Ottawa's city council is probably far off his personal radar.
MacLeod gives it the old college try. She cites Ottawa's geographic diversity -- it has rural as well as urban districts -- and its large French-speaking population. But those arguments wither before even the most cursory examination.
Toronto -- which stretches from the Rouge Valley and Scarborough in the east to the Humber and Etobicoke Valleys in the west and has a vast multiplicity of ethnic groups and distinct neighbourhoods -- is far more diverse than Ottawa in almost every respect. According to recent census data, about half of Toronto's nearly three million people are members of visible minority groups; and nearly half of Torontonians have languages other than English as their mother tongue.
To top it off, Ford, famously, never, ever mentioned his intention to cut the size of Toronto's city council during the election campaign. The issue never came up -- no journalist or politician from another party or member of the public raised it -- so the Conservatives can at least boast that they did not out-and-out lie in this case, as they did when they promised to maintain the guaranteed income pilot project. Shortly after the election, the Ford government chopped that project, without warning or consultation. Lisa MacLeod was the minister responsible for that file.
A ruling based not on jurisdiction, but on freedom of expression
The Canadian Constitution assigns cities and towns, and their governance, to the provinces. In some countries with federal constitutions, such as Brazil, municipalities constitute a third order of constitutionally enshrined government. That is not the case in Canada. Here, the Constitution recognizes only the federal and provincial orders of government -- that's it, that's all.
In his ruling, Judge Belobaba fully accepts Ontario's constitutional authority over cities and towns.
"There is no dispute," the judge writes, "that the province has … authority to pass laws in relation to 'Municipal Institutions in the Province.'" He then goes further and adds that the province can even pass a law that is "wrong-headed, unfair or … 'draconian.'"
However, Belobaba stipulates one big proviso limiting provincial power. Any laws a province passes "must comply with the Charter of Rights and Freedoms (and, arguably, any applicable unwritten constitutional norms and principles)."
That is where, in Belobaba's view, Bill 5 falls short.
"At first glance," the judge writes, "Bill 5 … appears to fall squarely within the province's legislative competence. Upon closer examination ... however, one discovers at least two constitutional deficiencies ... The first relates to the timing of the law and its impact on candidates; the second to its content and its impact on voters."
The timing and impact on candidates are significant issues because the campaign was already underway when Ford changed the rules of the game.
"The evidence is that the candidates began the election campaign on or about May 1, 2018 on the basis of a 47-ward structure," the judge notes.
"When Bill 5 took effect on August 14, midway through the election campaign, most of the candidates had already produced campaign material such as websites and pamphlets that were expressly tied to the ward in which they were running. A great deal of the candidate's time and money had been invested within the boundaries of a particular ward when the ward numbers and sizes were suddenly changed."
Belobaba makes a strong case that Bill 5 created a whole lot of confusion that almost fatally impaired the democratic process in Toronto.
"There was confusion about where to run, how to best refashion one's political message and reorganize one's campaign, how to attract additional financial support, and what to do about all the wasted campaign literature and other material," the judge says.
Citizens need access to their councillors
Belobaba explains that the 25 electoral districts Ford wants to create for Toronto would have a population of about 110,000 each. That voter-councillor ratio would be many times more than in any other town or city in Ontario.
The judge also notes that city council is the level of government closest to the people. It deals with the pressing issues of daily life.
"City councillors," he writes, "receive and respond to literally thousands of individual complaints on an annual basis across a wide range of topics -- from public transit, high-rise developments and policing to neighbourhood zoning issues, building permits and speed bumps."
Belobaba then notes that the Supreme Court provided useful guidance on the question of effective representation when it ruled that there is a "right to bring one's grievances and concerns to the attention of one's government representative."
"This right must obviously be a meaningful right," the judge emphasizes.
The Ford government has made no effort to address any of the fundamental issues the judge put on the table. Its tactic has been personal attack. It is far easier to claim the judge is biased -- and not elected -- than to address his well-argued decision, point by point.
In any case, the tactic of using the notwithstanding clause might not, in the end, work. Stay tuned for more on that in the days to come.
Karl Nerenberg has been a journalist and filmmaker for over 25 years. He is rabble's politics reporter.
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