Monday, September 10, 2018

Protecting the City of Toronto from Doug Ford

The Ford government lost for a second time in the courts on one of its early and arbitrary initiatives - the downsizing of Toronto City Council. Ontario Superior Court Justice Edward P. Belobaba ruled on September 10 that the Ford government's legislation violated the Charter of Rights.

Here is the most relevant section:

[7] Most people would agree that changing the rules in the middle of the game is
profoundly unfair. The question for the court, however, is not whether Bill 5 is unfair.
The question is whether the enactment of Bill 5 is unconstitutional.
[8] I am acutely aware of the appropriate role of the court in reviewing duly enacted
federal or provincial legislation and the importance of judges exercising judicial
deference and restraint. It is only when a democratically elected government has clearly
crossed the line that the “judicial umpire” should intervene.
[9] The Province has clearly crossed the line.
[10] For the reasons set out below, I find that the Impugned Provisions of Bill 5
substantially interfered with both the candidate’s and the voter’s right to freedom of
expression as guaranteed under section 2(b) of the Canadian Charter of Rights and

In addition to timing the judge also found that cancelling the new 47 ward system violated the Charter by undermining the right to "meaningful and effective representation".

Regardless, the Ford government's justifications for its actions were seriously deficient. In the news release from the premier on July 27 he claimed that the bill reducing the size of council is "estimated to save Toronto taxpayers more than $25.5 million over four years". Sounds like a lot of money right, millions of dollars. This sort of misleading use of numbers happens all the time so let's examine more closely what is at issue here. First note the over four years qualification. Lets do a little math. Every year as a homeowner in the City of Toronto I pay thousands of dollars in municipal property taxes every year so you would think significant savings should be welcome.

$25 million dollars divided by 4 gives us 6.4 million dollars per year. However, there are 2.9 million citizens in the City of Toronto so the saving for each one of us is only $2.20, about enough to buy an extra large coffee at Tim Horton's once a year. In other words the savings Ford claims are utterly trivial, especially weighed against the steep cost to local democracy.

A Constitutional Amendment to Protect Municipal Democracy

There is something we can do.  The key democratic items in the City of Toronto Act, those relating to the number of wards and elections could be added to the Constitution Act, 1867 by an amendment made under section 43 of the Constitution Act, 1982, which permits the constitution to be amended with the support of the legislature of the province and the federal House of Commons and Senate. Of course the protections could be removed in the same way, but it at least slows down the process. In the past the federal government has enacted amendments only where substantial support for the measure has been demonstrated within the province. In this case, substantial consent should be demonstrated within the city for such a change. In fact, the City Council voted to oppose the change and a recent poll found a clear majority of those making a choice were opposed.

As the recent controversy has illustrated the Ford government is prone to act impulsively and arbitrarily.  Municipal institutions are entirely with provincial jurisdiction but enacting the amendment suggested above would at least grant a small degree of constitutional protection to the citizenry as voters in municipal elections. Hopefully it would become a symbol no government would mess with.

The court decision today was welcome, but it could have gone the other way. It will take at least four years to get a provincial government sympathetic to the idea of enacting constitutional protection for municipal democracy, but building support for the idea should begin now.

Ford reacted by saying he will overturn the decision using the notwithstanding clause. This is utterly capricious. The notwithstanding clause is a blunt instrument and should only be reserved for extreme cases. It seems to me this strengthens the case for a constitutional amendment such as the one described above. The Ford government clearly needs restraint.