The Fight against Doug Ford’s Attack on Toronto has Begun

On Monday, the Toronto City Council continued its debate on their response to Doug Ford’s changing the ward boundaries and cutting City Councillors from 47 to 25 in the midst of a municipal election campaign. The law which purports to authorize Ford’s actions was not yet introduced at Queen’s Park when the debate on what is an existential issue for the City of Toronto had already begun.

“Bill 5, The Better Local Government Act, 2018” (who says?) was introduced for first reading only on Monday afternoon. Tuesday, second reading was delayed by an Opposition amendment. It is now scheduled for second reading tomorrow, Thursday, August 2nd. The expectation is that the government will use every effort to push the law through as quickly as possible without any Committee hearings or any consultation.

I attended the City Council debate on Monday and was struck by how much time the hard core of councillors who supported Ford’s actions spent pontificating about the advantages of reducing their number to twenty-five. “Twenty-five reps works well for the province and the federal government;” they said, “it can work well for municipal government as well. It’s “a welcome move,” “taxpayers will be happy,” “a first step to ending the chaos at city hall,” “there is no need for any referendum; that occurred on June 7th,” “the province has all the power, we can do nothing about it, move on.”

Another group of councillors supported reducing the wards and the number of councillors but were very unhappy with the process and timing. They made it clear that their constituents did not like arbitrary change mid-way through an existing election.

The majority of councillors were adamant that this was an arbitrary interference with the fundamental governance of City Council without consultation and in the middle of a municipal election, according to the existing law and set for October 22nd. Reflecting a multi-year Ward Boundary Review undertaken by the City in recent years and conducted with significant public and professional consultation, the existing law provides for 47 wards and 47 councillors. These numbers provide approximate voter parity and reflect changing voter populations in different parts of the city. Numerous diverse candidates from communities not previously represented at Council have already registered as candidates “for the right reasons.” Now no one knows what is going on. And the City Clerk has made it clear that it will be very difficult, if not impossible, to accommodate the proposed changes in preparations for the current election.

Several councillors spoke about the unique governance structure of the City of Toronto, the multiplicity of community councils staffed by local councillors, committees, commissions, boards, and institutions which now require councillor participation and already have trouble finding a quorum. Others spoke about the work of city councillors where they must be responsive to personal, local concerns, development applications, the desires of multiple Business Improvement Areas, residential associations, community groups, the nitty-gritty of city life which puts more demands on local politicians than on federal and provincial representatives. If immigration is the primary preoccupation of M.P.s, provincial M.P.P.s are preoccupied with education and health care issues. Everything else falls to the municipalities.

Others noted that the actions of Doug Ford were directed only to the City of Toronto. If the number of municipal councillors is to be determined by using provincial and federal constituencies, many Ontario cities would be reduced to one councillor, or perhaps a councillor they would share with another town. Councillor Shan noted that Scarborough, with a population of over 600,000, now has six Councillors and would be reduced to three under the new rules. Markham, with a population of 350,000, has twelve. Already under the existing rules, Toronto has more constituents per councillor than any other city in the province; under the new rules, the numbers would double. So much for voter parity which is supposed to be a fundamental principle of the right to vote in Canada.

Many councillors were particularly articulate about the significance of Ford’s attack on the city and what must be done. See Gordon Perks on YouTube. He is absolutely right. If we value our municipal government, and the work that city councillors do on our behalf, we have to respond.

City Council has voted its opposition to the reduced numbers, and has requested the provincial government to conduct a binding referendum before proceeding with the legislation or, alternatively, to permit the City to put a question on the 2018 ballot. It has also requested the City Solicitor to consider the validity and constitutionality of any provincial legislation, including its potential violation of the rights of the citizens of Toronto to fair and effective representation, the practicality of conducting the election, the Clerk’s capacity to implement the changes, and any errors or flaws in the legislation and to report back to City Council at a special meeting… on Monday, August 20, 2018 with options for City Council’s consideration. (Passed 31:10)

Former mayor David Miller, lawyer David Butt in the Globe and Mail, and I have called for litigation to challenge what Ford is doing in court. There is jurisprudence which describes the nature of the “right to vote” under the Canadian Charter, but my lawyer son tells me that that the Charter “right to vote” does not apply to voting at the municipal level. Previous efforts to use the courts to stop the amalgamation of the City of Toronto were unsuccessful. This case, however, is unprecedented. How the province has proceeded, the lack of any consultation with those affected, and the timing of the change of the law (in the middle of a current election campaign) all distinguish this case from prior jurisprudence. If ever there were a fact situation that demonstrates the most arbitrary provincial action against a major city within its jurisdiction, this it it. It would make an excellent test case.

In the meantime, we have to follow Councillor Perks’ advice and make sure that the provincial government (including the alleged “adults in the back rooms”) know that what they are doing is beyond the pale. As Councillor McMahon said on Monday, “It is simply wrong.”

Tomorrow, those who want to show their opposition are invited to attend Queen’s Park and be present in the public gallery when the government seeks to go forward with second reading. There is also a rally scheduled for the lawn of the Legislature at 11:30. See you there.

 

 

 

 

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One comment

  1. Bob I.

    No, your son, the Lawyer, didn’t tell you that the Charter right to vote didn’t extent to municipalities, the Supreme Court of Canada (https://www.canlii.org/en/ca/scc/doc/1993/1993canlii58/1993canlii58.html) told you that the charter protections of voting rights don’t extend to municipal voting. So did the Ontario Court of Appeal in their decision dismissing the last attempt to challenge Ontario’s right to change the laws governing Toronto (https://www.canlii.org/en/on/onca/doc/1997/1997canlii1316/1997canlii1316.html).

    There is no legal basis for challenging the Ontario governments authority to re-write the City of Toronto Act. It is squarely within the Legislature’s constitutional authority to do so, and there are no obvious constitutional rights which are infringed by doing so. You cite a “lack of consultation”, short timing and the (allegedly) “arbitrary” nature of the change as grounds for review. But there is no right to consultation by the legislature, no protection against the legislature implement sudden changes with immediate effect, or no right against the implementation of (allegedly) arbitrary laws. Indeed, those are common features of legislation enacted by the legislatures of Canada – every budget day the Federal governments surprises Canadians with new laws, often laws with adverse implications for them, often laws with immediate (or, on occasion, retroactive) effect, often laws which are arbitrary. It is entitled to do so, so are the provincial legislatures within their jurisdiction..

    The crux of the claims that there is exists some legal impediment to the Ontario government’s action is premised on the existence of some unwritten constitutional norm that Provinces will not change the governance of municipalities without consent or consultation. That claim was soundly rejected by the Ontario Court of Appeal in the decision cited above. I cite, in it’s entirety, the relevant conclusion:

    “There is, in our view, no merit in the appellants’ submission that the provincial government exceeded its jurisdiction under s. 92(8) of the Constitution when it promulgated the City of Toronto Act, 1997. The division of powers between federal and provincial governments found in ss. 91 and 92 of the Constitution, allocated responsibility over “municipal institutions” to provincial governments. The appellants argued alternatively that this authority was circumscribed by implicit constitutional conventions (before Borins J.), or by implicit constitutional norms (before us) not to effect change to a municipal institution without its consent.

    There is, with respect, no evidence of the existence either of a constitutional norm or of a constitutional convention so restricting provinces. When altering municipal institutions, there are undoubtedly sound political reasons for a provincial government to exercise great care in the process of consultation and, ultimately, of reform. The expressions of public disapproval with the methodology employed prior to the passage of the City of Toronto Act, 1997 confirm this truism. However, courts can only provide remedies for the public’s grievances if those grievances violate legal, as opposed to political proprieties. What is politically controversial is not necessarily constitutionally impermissible.

    In 1896, the Privy Council confirmed that s. 92(8) gave provincial Legislatures the right to create legal bodies for the management of municipal affairs, a right which included the right to amalgamate such bodies and establish their geographic boundaries: Ontario (Attorney General) v. Attorney General of Dominion, [1896] A.C. 348 (P.C.) at pp. 363-64. Any ambiguity about whether a constitutional norm restricted a province from making changes to municipal institutions without municipal consent was resolved in that case in favour of the province’s jurisdiction to do so: see also Lynch v. Canada North-West Land Co. (1891), 1891 CanLII 60 (SCC), 19 S.C.R. 204 at 209. No case subsequently decided has ever diluted this fundamental authority.”

    The Ontario Court of Appeal’s conclusion that there is no merit to this claim is definitive, and reflects jurisprudence that was settled more than a century ago. I don’t expect the likes of Gord Perks or the Editorial Board of the Globe and Mail to be familiar with the jurisprudence in this area – they’re not lawyers. The likes of Gerald Butts or David Miller, on the other hand, have no such excuse.

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