Published: Tue, September 11, 2018
Markets | By Otis Pena

Doug Ford Overrules Provincial Judge Over Toronto Council Size

Doug Ford Overrules Provincial Judge Over Toronto Council Size

The federal intergovernmental affairs minister says it is disappointing the Ontario government has resorted to the Constitution's notwithstanding clause to forge ahead with plans to cut the size of Toronto city council.

With no compelling reason to enact Ford's legislation while Toronto is in the midst of the campaign leading up to the October 22 municipal election, the approach a reasonable government concerned about the fundamental rights of its citizens would have been to appeal the ruling to a higher court.

Ford justified the move by stating his opinion that Belobaba's decision was "deeply concerning and wrong".

Belobaba accepted arguments from city lawyers, who contended that reducing the number of councillors in the middle of an election is "discriminatory and arbitrary", and violated the charter.

The second Charter flaw, according to the judge, was that the bill "doubled the size of City of Toronto wards from an average of 61,000 to an average of 111,000".

The premier, whose government is facing other legal challenges on controversial moves such as the scrapping of a modernized sex-ed curriculum, said he "won't be shy" about using the notwithstanding clause - known as Section 33 of the charter - again in the future.

Social Services Minister Lisa MacLeod has said that Ottawa is a unique case because it is, geographically, so much larger than Toronto and includes a sizeable francophone community. "I was elected by 2.3 million voters".

"It is only when democratically elected government has clearly crossed the line that the 'judicial umpire'should intervene", Belobaba wrote in his 21-page decision.

The Ontario government's unprecedented use of the notwithstanding clause in order to proceed with plans to cut the size of Toronto's city council has raised some questions about this rarely used section of the Charter of Rights and Freedoms.

Speaking on Newstalk 580 CFRA's Beyond the News with Brian Lilley Monday evening, Ford said he gets a lot of calls from Ottawa on that very subject.

Ford was set to respond to the ruling on Monday afternoon.

She added that she is certain the judge would have crafted his ruling to withstand an appeal.

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"Right now, we said we're going to focus on this".

"I get the fact that he believes in a smaller city council".

Coun. Kristyn Wong-Tam tweeted that an appeal for the province would be a "steep uphill climb".

Ford had argued it would improve decision-making on the council.

Mayor John Tory said the judge agreed with the city that it is not fair to "change the rules in the middle of the game". It is an election campaign, one of the most fundamental foundations of our democratic system. The idea that governments might see their legislative goals struck down by a single judge was, he said, "scary".

"The only people who are fighting this bill are left wing councillors who want to continue their free ride on the taxpayers, along with a network of activist groups that have entrenched themselves with power, over the years", said Ford.

McMaster University political science professor Greg Flynn said Ford's use of the notwithstanding clause is a "nuclear response" and will likely lead to more litigation.

The Ontario government had at least an arguable basis on which to explain the decision: By invoking Section 33, it could have presented itself as maintaining certainty and the status quo for the municipal election while also seeking to appeal the lower court ruling.

Likewise, observers outside Toronto City Hall expressed alarm and concern over Ford's "authoritarian streak", flashes of "despotism" and petty "personal beefs".

Green party Leader Mike Schreiner said the decision confirms that not even Ford is "above the law".

The decision has no effect on Bill 5's cancelling of regional chair elections in other municipalities.

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