APPEAL COURT BACKS FORD
Ruling upholds plan to cut Toronto council
Unfair doesn’t equal unconstitutional, and the judge who equated the two almost certainly got it wrong.
So says Ontario’s top court, ruling Wednesday that when voters go to the polls in Toronto Oct. 22, they will do so in a 25-ward election.
The ruling in the province’s favour eliminates the Ford government’s controversial use of the notwithstanding clause of the Charter of Rights and Freedoms to push through new legislation.
The province and its largest city have been engaged in a bitter battle over the number and size of the city’s wards since when Premier Doug Ford’s newly elected Conservative government passed Bill 5 last month, reducing the number of wards from 47 to 25.
That the change was sudden, perceived as motivated by Ford’s own experience as a city councillor and that of his late brother, Toronto mayor Rob Ford, and came mid-election campaign only further outraged some residents and candidates.
Some of them, and lawyers for the city, went to court earlier this month, saying the bill was unconstitutional.
On Sept. 10, Ontario Superior Court Judge Edward Belobaba agreed with them, declaring that the province had “substantially interfered” with freedom of expression rights of both candidates and voters.
But in its decision the high court said, “The question for the courts is not whether Bill 5 is unfair, but whether it is unconstitutional. On that crucial question, we have concluded that there is a strong likelihood that (Belobaba) erred in law.”
The three-member panel, led by Associate Chief Justice Alexandra Hoy, said Belobaba’s interpretation “appears to stretch both the wording and purpose” of the free speech section of the Canadian Charter of Rights and Freedoms and “blurs the demarcation” between it and the section which separately guarantees the democratic rights of citizens to vote and stand for office.
The appeal court said that while undoubtedly the introduction of Bill 5 “disrupted the campaigns that were already underway,” it doesn’t “limit or restrict any message the candidates wish to convey to voters for the remainder of the campaign.
“Nor does it erase messages conveyed earlier.”
While the change in ward boundaries and size may be frustrating for candidates, “we are not persuaded that their frustration amounts to a substantial interference with their freedom of expression.
“The candidates were and are still free to say what they want to say to the voters.”
The so-called “platform” of a 47-ward vote isn’t guaranteed, the court said, and if “the decision of the legislature to change it during the campaign was unexpected and perhaps alarming,” the fact is Bill 5 “does not deprive them of their constitutional right to say whatever they want to say about civic issues.”
Similarly, the three judges said, whether “effective representation” for voters means a ward of 61,000 people or 110,000 “is a debatable issue that cannot be determined by reference to freedom of expression.”
It is Section 3 of the Charter that protects “effective representation,” and it applies only to federal and provincial elections, not to municipal elections.
In other words, said the high court — albeit much more diplomatically — Belobaba got just about everything wrong: bleeding one Charter right into another which doesn’t even apply to city elections; equating unfairness with unconstitutionality; and expanding the right to free expression with the non-existent right to a certain sort of platform.
Robin Basu, the lawyer for the government side, told the appeal court in arguments heard Tuesday that if the province succeeded in winning a stay it would halt its efforts to enact Bill 31, the substitute the government brought in for Bill 5 when it was declared unconstitutional.
The effect of the new ruling is to temporarily leave Bill 5 in place until the election — “staying,” or holding, Belobaba’s decision until the full appeal can be argued.
But the court made it clear what the judges thought of the chances of that appeal failing: They called Belobaba’s decision “dubious” and said the province has “a strong prima facie case on appeal.”
Toronto Mayor John Tory told the Canadian Press that while the appeal court decision was not what the city sought, it does bring clarity for the time being.
“I have opposed, and continue to oppose, the provincial government’s actions. They are unfair, they are unnecessary, and they are unprecedented,” he said. “You don’t just change the rules of an election in the middle of the election, and you shouldn’t be surprised when your recklessness causes chaos and confusion.”
When asked whether the city would take the issue to the Supreme Court of Canada, Tory said city lawyers have been given the authority to take whatever steps are needed to fight the council cut.