Doug Ford defies Ontario court

Iwon’t pretend to be competent to discuss the finer legal points of the Ontario Superior Court’s ruling against Premier Doug Ford’s move to cut Toronto’s city council from 47 seats to 25. That will require more lawyers on more retainers taking up more court time over a matter that no one doubts is fully within the powers of the province, and which appears certain to happen in any case.

Here are a few points to consider however.

Justice Edward Belobaba declares that enlarging existing council districts interferes with freedom of expression as protected by the Constitution. The new boundaries are the same as used for federal and provincial constituencies. Belobaba deems the population of the new wards antithetical to effective representation for municipal representation, though evidently it works fine for federal and provincial seats.

The ruling seems to mean freedom of expression doesn’t protect the right to raise money and seek election to a political position, but instead protects the right to raise money and seek election to a political position within an unchanging boundary over a given period. “Passing a law that changes the city’s electoral districts in the middle of its election and undermines the overall fairness of the election is antithetical to the core principles of our democracy,” Belobaba asserts. Yes, the candidates for the 22 seats that were to disappear were free to contest the new seats, but that would involve expense and inconvenience, for which they were not prepared. The Constitution, it would seem, does not tolerate inconvenience.

Belobaba notes that the province is free to change the boundaries and drop the 22 seats, it just has to wait until after the October election. It was the timing that was the issue. Ford can get his reduction, and freedom of expression will have been duly protected. Several dozen candidates will have been allowed to spend money seeking a job that’s about to disappear, after 22 of them get to spend a short period living on the public dime.

Will time and money have been spent on something that will have only the most fleeting impact on the result? As Belobaba notes archly in one of his comments: “How could it not?”

The real import of Monday’s ruling is its further confirmation that judges and the Constitution industry run Canada, and politicians have been slow catching on. Prime minister Stephen Harper learned this lesson in running afoul of the Supreme Court on several occasions: mandatory minimums, assisted suicide, Senate reform and others.

His successor, Justin Trudeau, got his comeuppance a week ago when a Federal Court of Appeal put the Trans Mountain pipeline project in mothballs while lecturing the government over the inadequacy of its consultation process.

Ford is new to office and clearly operated under the understanding that he was free to exercise powers that come under the mandate of the province. He failed to appreciate that litigiousness has become a core element of Canadian politics, and governments now must routinely defer to courts to pass judgment before going ahead with matters they might otherwise presume to be of a political nature.

Trudeau’s hoped-for carbon tax plans and the eventual outcome of the Trans Mountain project — both major issues that could easily be decisive in the outcome of the next federal election — will ultimately be dependent on judicial interpretations. Those rulings will then set precedents other judges will refer to in assessing the acceptability of other legislative efforts.

Judges, of course, aren’t elected. Politicians are. Both are human and make mistakes — sometimes dumb ones. Politicians can be replaced by voters; judges can’t. The activist community is well aware of this fact, and has learned that using the courts to foil government initiatives is far more effective than arguing with politicians themselves.

Delay is a powerful political tool; courts are an excellent means of bringing about delay. Ford has now been slapped down by judges twice in his short period as premier. His cancellation of an incentive program for electric vehicles was successfully challenged by Tesla. The rebates will still disappear, but Tesla will now be held to the same timelines as other manufacturers.

In that case, as in Monday’s ruling, the premier was deemed to be acting as much by a sense of personal pique as public necessity. Toronto Mayor John Tory’s opposition to the reduction in council seats focused on the process, and the lack of consultation. Ford had given no sign of his plan during last spring’s election campaign, and Tory said the premier had only mentioned it to him in passing, in remarks Tory didn’t take seriously.

“We have stood up for Toronto and our rights as a city,” Tory crowed in response to the court’s ruling. “You can’t change the rules in the middle of the game. That’s not fair to anyone, and this is not a game.”

Ford rejected the ruling in total and said he would invoke the notwithstanding clause to force it through if necessary.

At an afternoon press conference he was asked if that would deny Ontarians their “freedom of expression,” as if invoking a provision of the Constitution would violate the Constitution. That’s how convoluted current notions of prevailing rights have become.

“I have a great deal of respect for our judicial system, but lawmaking power is given by the people to Ontario’s elected representatives,” Ford said. Declaring the ruling “unacceptable to the people of Ontario” he said he would launch an immediate appeal and recall the legislature to reintroduce the act.

“My direction … is to do what it takes to ensure that this law, which has already been passed once already, is reintroduced, voted on, and passed again on the quickest possible timetable.”

“We were elected by 2.3 million people. That’s what democracy is … What is very concerning moving forward is if our decisions in changing the laws to make this province better, make it more efficient, to build transit, to build infrastructure, to build housing is being shot down by the courts. That’s scary.”

He noted that Toronto was given 90 days notice of the change, three times the length of a typical provincial election. “What is extraordinary is a democratically elected government trying to be shut down by the courts. That concerns me more than anything.”

He insisted “the people” will eventually judge his actions, on voting day. It’s not the place of the courts to usurp that power, he argued. It may be that someone will challenge him on that, and the courts will decide.