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2b or not 2b: Charter section key in Toronto’s fight over council cut

Colin Perkel, The Canadian Press | posted Monday, Jun 10th, 2019

Ontario’s top court is set to thrash out the legalities of last year’s unprecedented intervention by Premier Doug Ford’s rookie government in Toronto’s municipal election.

The battle, slated for Monday and Tuesday, pits the city against the province over legislation that slashed the number of councillor seats to 25 from 47 partway through last fall’s municipal election campaign.

In new filings, the city urges the Court of Appeal to declare the Better Local Government Act unconstitutional – but to then leave things as they are until the next election in 2022.

“There is no reliable evidence to support the province’s suggestion (the act) was necessary because city council is dysfunctional,” Toronto says in its filings. “The rhetoric from the premier or members of the legislature is not reliable evidence.”

Carissima Mathen, an Ottawa law professor, said the city faces an uphill battle in persuading the Appeal Court to its viewpoint.

“There’s no question that the deck is stacked against them,” Mathen said. “What they do have on their side is this sense that there was something deeply unfair and there was something deeply troublesome about the way the province went about this.”

In passing the legislation, Ford’s Progressive Conservatives maintained that fewer councillors would ensure a more effective council. Critics called it crass political interference from Ford, a failed mayoral candidate and one-term councillor under his late brother, former mayor Rob Ford.

In its factum, the province renews its claim the legislation was necessary.

“(The act) is a meaningful, proportionate measure to address the dysfunction caused by having too many councillors – ungoverned by party discipline,” the province says. “A smaller council can operate more effectively as a deliberative body, with a lower burden on city staff.”

Passage of the act, better known as Bill 5, caused an uproar, sparking accusations the Ford government was riding roughshod over local democracy.

The city initially prevailed in its legal fight when Superior Court Justice Edward Belobaba, just weeks before the October election, declared the legislation unconstitutional and ordered a 47-seat vote to proceed. Ford further inflamed debate by threatening to invoke the notwithstanding clause in light of the decision.

That proved unnecessary after the province won a stay of the ruling pending disposition of its appeal, and the 25-ward election went ahead.

In his decision, Belobaba said Bill 5 violated the free-expression rights of candidates and voters under Section 2b of the charter, and “undermined an otherwise fair and equitable election process.” The Ford government, the judge found, had “clearly crossed the line” into undemocratic territory.

The appellate court, however, called Belobaba’s reasoning “dubious” in granting a stay. While the legislation might have been disruptive and frustrating, that did not necessarily amount to a constitutional violation, the Appeal Court said.

“The question for the courts is not whether Bill 5 is unfair but whether it is unconstitutional,” the higher court said. “We have concluded that there is a strong likelihood that (Belobaba) erred in law, and that the attorney general’s appeal to this court will succeed.”

The city argues the Appeal Court should uphold Belobaba’s freedom of expression finding but, in its filings, also argues the legislation violates unwritten constitutional principles of democracy under Section 3 of the charter.

“A province does not have the power (under the Constitution) to enact legislation that makes the election of a democratically elected municipal government undemocratic,” the city argues.

The province counters that the Constitution does not guarantee any particular structure for local governments, which are essentially creatures of the province. It also argues Belobaba was out of line to order a 47-ward election rather than simply allow time for the legislature to pass new legislation.

“There is no basis to conclude that the resulting election was not free or fair – for candidates, their supporters and voters – that it failed to reflect the will of a freely informed electorate, or that the elected city council lacks a legitimate democratic mandate,” the province says.

The appeal hearing in which groups such as the Federation of Canadian Municipalities and Canadian Constitution Foundation are intervening will be available via livestream.

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