Ford says he'll use notwithstanding clause in attempt to force cuts to Toronto council

Ontario Premier Doug Ford took aim at the province’s courts on Monday, following a judge’s ruling that his attempt to shrink the size of Toronto’s city council in the middle of an election period was unconstitutional.

“What’s extraordinary is … a democratically elected government trying to be shut down by the courts,” Ford told reporters.

“That concerns me more than anything. That should be concerning to every single person in Ontario.”

A few hours earlier, Justice Edward P. Belobaba had struck down most of the province’s Better Local Government Act, which aimed to cut the number of city councillors in Toronto from 47 to 25.

The legislation would have redrawn Toronto’s ward map to match the boundaries of federal and provincial ridings, and would have left Toronto with one councilor for every 111,000 residents, instead of the current one councilor for every 61,000 residents. (Kingston, Ont., which has a population of 118,000, has 12 city councillors.)

“I find that the reduction … substantially interfered with the municipal voter’s freedom of expression … and in particular her right to cast a vote that can result in effective representation,” Belobaba wrote.

Ford had argued that slashing the size of the city council would improve its decision-making ability and save $25 million. City lawyers countered that making the cuts during an election period was “discriminatory and arbitrary,” while the province’s lawyers argued that municipalities cannot override decisions made by the provincial government about their affairs.

Toronto Mayor John Tory and many Toronto councillors had voiced opposition to the attempt to cut the size of council and the timing of the legislation. The newly elected Ford government introduced the bill in July, while Toronto’s election period began in May.

“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,” Belobaba wrote.

“Most people would agree that changing the rules in the middle of the game is profoundly unfair.”

Belobaba then said his job was not to determine whether the legislation was fair, but whether it was constitutional. Here, too, he said the province fell short of the standard, saying the government “has clearly crossed the line” and ordered the election to continue with 47 wards.

Ford said Belobaba’s ruling prompted an emergency cabinet meeting and prompted him to recall the legislature for later this week. He also said the province would pass a new version of the legislation which would invoke the notwithstanding clause, a rarely used constitutional measure.

The notwithstanding clause is a section of the Charter of Rights and Freedoms which allows the federal government and provincial governments to enact laws overriding other charter rights for five years.

It has been used several times in Quebec, and the Saskatchewan government is invoking it as part of legislation to fund education at the province’s Catholic schools for non-Catholic students. It has never before been used in Ontario.

Ford said he would not hesitate to use the notwithstanding clause again in the future, although he declined to give specifics on under what conditions he might do so.

“We will only move our mandate forward if it’s within the constitution,” he said.

Speaking to CTV’s Power Play host Don Martin Monday afternoon, Ford continued to defend his position, repeatedly saying that he is “protecting democracy.”

“It’s protecting the 2.3 million people that voted for our government,” Ford said.

While 2.3 million people did vote for the Progressive Conservative Party of Ontario in the June election, more than 3.3 million voted for the provincial NDP, Liberal and Green parties. The PCs also only won 11 of Toronto’s 25 ridings. Ford never mentioned reducing the size of Toronto’s city council during the campaign.

“During the election, I thought we were pretty clear about running government more efficiently (and) reducing the size and cost of government,” Ford said on Power Play. “I’m standing up for democracy.”

Judge finds multiple Charter breaches

The judge found that the legislation breached the Charter in two ways “that cannot be justified in a free and democratic society” – once by coming into effect during an ongoing election period and once by breaching the freedom of expression of voters and candidates.

Belobaba said the province breached candidates’ right to freedom of expression, as their ability to conduct a political campaign was suddenly hindered by the “wide-spread confusion and uncertainty” that resulted from the legislation.

“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,” he wrote.

For voters, he pointed to the 2017 report that led to Toronto increasing its number of wards from 44 to 47. That report’s authors weighed reducing the total number of wards to 25 and rejected the move, concluding that councillors would not be able to respond to constitutents’ concerns adequately.

Pondering the argument that the 25-ward system would provide more equality in ward populations than the 47-ward system, Belobaba suggested the province could have found ways to address voter parity without giving each Torontonian significantly less representation at City Hall.

“Why impose a solution … that is far worse, in terms of achieving effective representation, than the original problem? And, again, why do so in the middle of the City’s election?” he wrote.

“Crickets.”

Ford calls verdict ‘deeply concerning’

While maintaining that he had the “utmost respect for judges,” Ford called Belobaba’s decision “deeply, deeply concerning” and “unacceptable” to the Ontario voters who put him in office three months ago.

“They’re the judge and jury. No one else,” he said of the electorate.

Asked if he was concerned that using the notwithstanding clause for the first time in Ontario’s history to deal with the number of seats on a city council could be seen as a dictator-like move, Ford replied “I was elected. The judge was appointed.”

Ford claimed the only opposition to his legislation came from “a small group of left-wing councillors” and “a network of activist groups,” and accused the courts of not doing enough to hold the previous Liberal government accountable.

“What is very concerning, moving forward, is if our decisions in changing the laws to make this province better … [are] being shot down by the courts,” he said.

“That’s scary. That’s disturbing.”

Also “scary,” the premier said, was that he was “sitting here handcuffed with a piece of tape over my mouth, watching what I say.” He did not elaborate on that remark, which was presumably metaphorical.

Ford further claimed that Belobaba was appointed by Dalton McGuinty, a former Liberal premier, apparently hinting at a possible political motivation behind Monday’s decision. Judges on Ontario’s Superior Court of Justice are appointed by the federal government. Belobaba was appointed in 2005 under Prime Minister Paul Martin, a Liberal.

In addition to passing a new version of the Better Local Government Act invoking the notwithstanding clause, Ford said the province plans to appeal Belobaba’s verdict. It is not clear if the appeal would be heard prior to the Oct. 22 election.

Mayor, city councillors react

Tory spoke to reporters Monday morning, saying he was happy with the judge’s decision.

“You don’t change the rules in the middle of an election campaign. It isn’t fair and it isn’t right,” he said.

The mayor said he would be open to talking about the size of city council outside of an election period provided it involved a referendum or some other form of public consultation.

“There are other ways at other times that the government of Ontario could, for right or for wrong, address this matter,” he said.

Many city councillors tweeted messages suggesting they were happy with the judge’s decision.

“It’s a great day for the City of Toronto and for democracy. Today, we celebrate!” tweeted Coun. Joe Mihevc.

Coun. Stephen Holyday, who was in favour of shrinking the size of council, told CP24 he was “surprised” by the ruling, particularly because most people he had spoken to while running for re-election were in favour of having fewer councillors.

“A lot of them were uncomfortable with this process, but could you imagine what is going to happen at city council if there is the threat of a downsizing in the future?” he said.

“If you think it’s a circus today, it’ll be a big top at that point in time.”

Other portions of the Better Local Government Act, which eliminated planned elections for regional chairs in the Muskoka, Niagara, Peel and York regions in favour of having those positions be appointed by councillors, remain in effect.

Responses from Ottawa and legal experts

In a written statement, federal Intergovernmental Affairs Minister Dominic LeBlanc called Ford’s decision to invoke the notwithstanding clause “disappointing.”

“The rights and freedoms guaranteed by the Charter are of utmost importance in our society and our government will always stand up to defend them,” LeBlanc said. “The notwithstanding clause is an extraordinary part of the constitution that should only be used in the most exceptional of cases, after serious and sober consideration. Today’s announcement is disappointing, and Ontarians will ultimately judge the actions of their provincial government.”

Speaking on Power Play, Ford also stated that, “every constitutional expert in the country disagrees with the judge’s decision.”

While that claim remains hard to verify, he does have support.

Taking to Twitter Monday, Howard Anglin a lawyer who formerly served as Prime Minister Stephen Harper’s deputy chief of staff, said Belobaba got his “constitutional argument backwards.”

“(T)here is a lot that isn't well thought out, consistent, or explained in the decision,” Anglin, who now serves as executive director of the Canadians Constitution Foundation, tweeted. “It's almost as if, to borrow a phrase from para.70 of the ruling, the opinion was penned ‘more out of pique than principle.’”

“The entire existence of the notwithstanding clause (and therefore the Charter itself) is premised on the idea that courts can overreach,” University of Waterloo associate political science professor Emmett Macfarlane added on Twitter. “I'm struck by the fact that today's decision, from a legal reasoning point of view, is bad enough that it's exactly why the notwithstanding clause exists.”

Breaking: Judge rules that Bill 5 was unconstitutional. Paves the way for Toronto to return to the 47 ward structure for the October 22nd election. #onpoli pic.twitter.com/jVomdDk4PM

— Colin D'Mello CTVNews (@ColinDMello) September 10, 2018