Ontario Premier Doug Ford says the province will use the notwithstanding clause to override a court ruling that struck down provincial legislation which would have slashed the size of Toronto city council by nearly half.
On Monday, Ontario Superior Court Justice Edward Belobaba said in his ruling that the Progressive Conservative government interfered with the right to freedom of expression for both candidates and voters when the province passed the Better Local Government Act last month.
“I find that the Province’s enactment of Bill 5 in the middle of the City’s election substantially interfered with the municipal candidate’s freedom of expression that is guaranteed under s. 2(b) of the Charter of Rights,” Belobaba said in his ruling released Monday morning.
The judge found that the reduction of city wards to 25 from 47 in the middle of an election substantially interfered with municipal voters’ freedom of expression and the “right to cast a vote that can result in effective representation.
“It is only when a democratically elected government has clearly crossed the line that the ‘judicial umpire’ should intervene. The Province has clearly crossed the line,” Belobaba wrote in his decision.
“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.”
During a news conference Monday afternoon, Ford said the province would also appeal the court decision.
“I believe the judge’s decision is deeply, deeply concerning,” Ford told reporters. “The result is unacceptable to the people of Ontario.”
Ford said he’d be recalling the legislature this week to introduce legislation that will invoke the notwithstanding clause, which gives provincial legislatures or Parliament the ability, through the passage of a law, to override certain portions of the charter for a five-year term.
Known as Section 33 of the Charter of Rights and Freedoms, the clause has been one of the most controversial aspects of the charter and has never been used in Ontario.
“He’s the judge. I’m the premier. He gets to use his tools. I’ll use every single tool to stand up for the people of Ontario, stand up for the 2.3 million people that elected this government,” Ford said.
The Toronto city clerk confirmed on Monday that the municipal election will proceed with 47 ward seat boundaries and candidate nominations that closed on July 27.
The council-cutting legislation, called the Better Local Government Act, aligned the city’s ward map with federal ridings for the Oct. 22 municipal election.
Ford has argued the move will improve decision-making and save $25 million.
The bill also cancels planned elections for the head of council position in the regional municipalities of Muskoka, Peel, York and Niagara, turning them into appointed roles. Belobaba said his ruling does not impact that aspect of the bill.
Belobaba’s ruling also stated that the province can move forward in the future with another “Bill 5-type law” if it so desires.
“If the provincial government wishes to enact another Bill 5-type law at some future date to affect future City elections, it may certainly attempt to do so,” the ruling stated.
“As things now stand — and until a constitutionally valid provincial law says otherwise — the City has 47 wards.”
LISTEN: Rocco Achampong on the Bill 5 decision
Lawyers for the City of Toronto argued that reducing the number of councillors in the middle of an election is “discriminatory and arbitrary,” and violates the charter.
“No matter what anybody thinks of the ultimate objective of the province, trying to make quote-unquote, the city more efficient, it’s just the notion of fair play and fairness,” Rocco Achampong, a Toronto lawyer and councillor candidate who challenged Bill 5, said.
“In the middle of an election, you don’t do that, and it’s never happened in Canadian history, and to be perfectly candid with you, I don’t even think I have an example in western democracy where that’s happened.”
Achampong, who registered to run in Ward 13 on July 27, believed the boundary changes constituted an unjust parameter for candidate hopefuls.
“The issue was I had made up my mind to run for a specifically defined boundary. I had made the decision and it was informed by the fact, there were 39,000 electors in that ward,” he said.
“There was a set amount of money one could possibly spend in this election which did not exceed a certain amount that i was comfortable being able to raise.”
Political reaction to Bill 5 ruling
Toronto Mayor John Tory called the use of the notwithstanding clause a “gross overreach” of the province’s powers.
“To use an oversized hammer to abridge the Charter of Rights and Freedoms of our country, as if the matter of how many councillors we have for this election is some sort of national emergency involving the overriding of fundamental rights, is a mistake,” he said.
Tory said the city will oppose an application expected from the province to stay the judge’s decision pending an appeal. The mayor also said city staff will advise councillors at a special meeting on Thursday how the municipality can proceed with the upcoming Oct. 22 election.
“The options if you look at the plain wording appear to be extremely limited,” he said. “It’s an uphill struggle but that doesn’t mean that something won’t be found or that some advice won’t be offered when we meet on Thursday.”
Tory also promised that if he is re-elected this fall he will try to take the issue to residents in a referendum.
“I appreciate his support for democratic principles, democratic institutions, and the importance of respecting cities,” he wrote.
In a tweet Monday evening, Tory said he met with Prime Minister Justin Trudeau to discuss the government’s decision to invoke the notwithstanding clause.
Toronto councillor Mike Layton told Global News Radio 640 Toronto the ruling will likely be upheld if the province moves to appeal the decision.
“I’m fairly confident that the Court of Appeals, if they even choose to hear the case, will uphold the decision because on its face, just how unjust this is,” Layton said.
“The judge was very clear that this was unconstitutional to do this in the middle of an election, both to voters as well as the candidates. And I hope that if they do hear the case, they hear it quickly so we can get back into the election process and provide some clarity.”
Mayoral candidate Jennifer Keesmaat condemned Ford’s decision, saying the decision needs to be fought with “every legal means.” She also took shots at Tory
“Premier Ford did not campaign on this issue. He has no democratic mandate to do this. And it is a disgrace to suspend the Charter on this or any other issue,” she said in a written statement.
“Toronto is represented by Mayor John Tory, and the Premier clearly feels he can push John Tory around … Why does Doug Ford think he can get away with this? It’s time for John Tory to come clean on his discussions with Doug Ford in the months leading up to this shocking day”
LISTEN: Municipal lawyer John Mascarin on the Bill 5 ruling
NDP Leader Andrea Horwath called Ford’s latest move an “abuse of power.”
“Invoking the notwithstanding clause in a case like this is an unprecedented move, literally suspending the Charter rights of Ontario people in order to plow ahead with his revenge plot against his political enemies,” she said. “A good leader doesn’t just ask if he has the right to do it, but whether it’s the right thing to do.”
Green party Leader Mike Schreiner said he was shocked at the lengths Ford would go to in what he called an “apparent personal vendetta” against Toronto.
“That Premier Ford would choose to use the notwithstanding clause in this way shows his arrogance and contempt for democracy,” he said. “This is a dangerous sign of what this government is willing to do.”
The Canadian Taxpayers Federation (CTF) issued a statement calling on Ford to appeal the decision.
“While the timing of the bill was not ideal, the City’s election period runs nearly six months long and this bill was introduced nearly three months before the election date, which is still longer than federal and provincial writ periods,” CTF’s federal director Aaron Wudrick said.
“Waiting an additional four years to reduce the size of city council is a missed opportunity to save taxpayers money.”
Read Justice Edward Belobaba’s full decision below.
— With files from The Canadian Press and Nick Westoll