Ontario will drop Bill 31 if appeal court grants a stay
Toronto’s lawyers taken aback by province’s chutzpah
TORONTO • The Ontario government is prepared to hold off on legislation to shrink Toronto city council, and thus avoid using the controversial notwithstanding clause, if it gets its way at the Ontario Court of Appeal.
Bill 31 is the replacement for Bill 5, the original legislation meant to cut the size of council nearly in half, and which was just earlier this month declared unconstitutional.
The notwithstanding clause, of course, is the little-used remedy in the Charter of Rights and Freedoms that enables provinces to override court decisions.
Government lawyer Robin Basu revealed the latest twist in the winding Toronto City Hall v Ford Government story at the appeal court Tuesday.
Basu was arguing that the court should grant a stay at least until the Oct. 22 municipal election has been held, after which the appeal of Ontario Superior Court Judge Edward Belobaba’s Sept. 10 decision would be argued in full at some undetermined later point.
If the court does that, Basu told the three judges, “the government will not bring Bill 31 forward for a vote … in the result, Bill 31 would not be enacted.”
A stay means a temporary halt. If the court were to grant one — it will announce its decision Wednesday at 10 a.m. — the effect would be that the election would proceed as scheduled but under the new 25-ward system.
Lawyers representing the city and other parties in the case were taken aback by the province’s chutzpah, in this and in other things its lawyer said.
In fact, collectively they appeared to regard the sudden announcement of the proffered quid pro quo as a barely veiled threat.
“Now the government has the gall to come before you to say ‘If you grant the stay, we won’t go ahead (with Bill 31),’” lawyer Donald Eady, who represents a handful of candidates and residents, told the court.
“That to my mind is shocking,” he said. “You can’t look at this (issue) with Bill 31 coming down the track.
“What the government suffers from is a severe form of constitutional arrogance,” he snapped.
Lawyer Howard Goldblatt, who represents another group of candidates and the Women Win TO organization, told the judges of “the affront we take and the court ought to take at the attorney general of Ontario coming to court today saying, ‘If you comply, Bill 31 will not be proceeded with and all the debate will be avoided.”
Goldblatt was particularly offended by Basu purporting to argue on behalf of the city clerk, as though the province, having created the electoral confusion — the clerk has been preparing for both a 47-ward election and a 25-ward one, but has warned she can’t continue to ready for both — would now kindly solve it.
He also took shots at Basu for daring to suggest a schedule for the full appeal, which will be argued regardless of the current decision, and for suggesting it should be argued on an expedited basis.
Basu, Goldblatt said, was in effect asking for relief for harm done, and when you make such a request, he said snidely, “You ought not to have been the one who caused the harm” in the first place.
“The Crown (Basu) now seeks to assist the clerk,” Goldblatt said. “Well, the clerk has been put in a very difficult position … but it hardly lies in the Crown’s mouth to say ‘Let us help you out.’ ”
City of Toronto lawyer Diana Dimmer said it was “very troubling” that the government in a casual, almost by-the-way manner, has said, “If everyone doesn’t back off, the province will simply continue” with Bill 31 and invoking the notwithstanding clause.
The province, Dimmer said, is basically saying to the court, “So help us out here, so then they don’t have to take the wrath of citizens across this country about using the notwithstanding clause.”
Belobaba found that Ontario had breached the freedom of expression rights of both city council candidates and city voters in last month arbitrarily remaking the municipal map and almost halving the number of city wards, from 47 to 25.
The appeal judges kept their cards close to their chest.
Of the three, Associate Chief Justice Alexandra Hoy was the most visibly engaged, asking questions of many of the lawyers, with Justice Gary Trotter saying little.
Justice Robert Sharpe was a close second to Hoy, once remarking, when Goldblatt was suggesting that the province hadn’t produced any evidence or shown a reason to stay Belobaba’s decision, “Legal error (in Belobaba’s ruling) would do it.”
“With respect,” Goldblatt replied, “I don’t see one.”
The judges appeared to have a good grasp of the issues, and as one observer remarked, “I feel like the grown-ups are finally taking over.”