There has been much bluster this week about an overreach of power related to the province’s decision to cut the size of Toronto’s city council prior to this fall’s provincial election. The talk has been underscored by Premier Doug Ford’s pledge to use the “notwithstanding clause” under Canada’s Charter of Rights and Freedoms to limit a freedom enshrined under the laws of the country and have his own way.
Ford is quite right the clause is a tool in the government’s toolbox that it can use in order to protect legislation that was duly passed at Queen’s Park, but the whole scenario raises legitimate questions about accountability and representation of locally elected representatives in a partisan government. Had the Progressive Conservatives campaigned on reducing any municipal government, let alone Toronto specifically, they’d have a much better case to make in court and in the public realm. It is, indeed, easy for Ford’s opponents to skewer his motivation, even if plenty of commentators have given anecdotal evidence of gridlock conducting the city’s business.
Justice Edward Belobaba struck down Bill 5 based on Charter grounds for freedom of expression for candidates and for voters. It is easy to see how the timing of the legislation hampered declared candidates for positions. They had already been certified, been given budgets based on existing ward boundaries, and likely started spending and planning. If the government wanted to change the composition of the council, it likely should have done it right out of the gate, introducing a bill before the nominations period closed.
It could be suggested that potential candidates still have the freedom to run in any of the new wards they choose and to express themselves as no candidate would be disadvantaged over the next in an attempt to dismiss the ruling on the freedom of expression grounds, but it is realistic to think the initial slate of candidates could seek some damages for their losses after the late changes — and maybe the government would have thought the compensation was well spent.
The question about voters’ freedom of expression is a stickier one. In his ruling, Belobaba discussed the idea of meaningful and effective representation as a grounds of expression. It’s certainly an interesting legal theory, given that each elected councillor will have about 49,000 more people to represent, but the argument can be made that residents can still vote and they can still contact their councillor. It could be argued that if it isn’t struck down, Belobaba’s decision could be used in a number of future cases to justify further increases to councils in order that everyone in Ontario has reasonable access to their councillors for this kind of expression.
Ultimately, whether through the “notwithstanding clause” or further appeal, the government will have to contend with Belobaba’s decision.It bears the burden of showing smaller government can offer savings and still effectively represent the people it serves. It’s also reasonable to expect any other austerity measures will be challenged on similar grounds.
Ironically, Ford’s expediency to make this change before another large council took office likely will have made it more difficult for him to advance his entire efficiency agenda. Had the Tories run on this plan, it may have survived a challenge. While it strategically makes sense for the provincial government to fight for its ability to enact legislation, the experience should provide a lesson that consultation and transparency remain the best path toward change, even for a government elected with a majority mandate.