Ruling on city council cuts may still be 10 days away
Judge hears seven hours of arguments, says he will keep ‘open mind’ but is unsure how to rule
It’s now up to a Superior Court judge to determine if the province’s sudden cut to Toronto city council is lawful or not.
After nearly seven hours of arguments on Friday in a University Ave. courthouse just steps from city hall, Justice Edward Belobaba says he plans to rule on upholding or striking down Bill 5, the Better Local Government Act, by Sept. 11 at the latest.
That’s just three days before nominations in the restarted municipal election are scheduled to close.
“I’m still not sure which way I should decide,” Belobaba said as the proceedings got underway, imploring the rows of seated lawyers in front of him to enlighten him. He promised to keep an “open mind.”
A total of 15 lawyers for the city, Toronto District School Board, candidates, community groups and electors submitted thousands of pages of argument, evidence and case law in advance of Friday’s hearing. They made their case in one of the city’s largest courtrooms, which saw the public gallery nearly full most of the day.
The case will come down to whether the judge finds the legislation is unconstitutional or breaches any rights guaranteed by the charter. Throughout the day, Belobaba focused on the latter through his questioning. Premier Doug Ford announced on July 27 that his government would introduce legislation that would alter election rules midcampaign, cutting the number of wards for Toronto’s October election to 25 from 47. The same legislation also cancelled elections for regional chairs in Peel, York, Niagara and Muskoka. The bill became law on Aug. 14.
Lawyers opposing Bill 5 argued Friday that the legislation was unconstitutional and violated charter rights of freedom of expression, freedom of association and equality.
“There’s no precedent like this, your Honour, where a government has interfered midstream in an election,” city lawyer Diana Dimmer said in opening the day’s arguments. “And that simply can’t be justified in our democratic society.”
The timing of the legislation, in the middle of an ongoing campaign, was a key point raised by several of the legal teams.
“Once you start an election process, the government needs to stay out of the way,” said Don Eady, a lawyer representing several candidates, electors and community groups intervening in the case.
He and others argued that Bill 5 “trampled” on and “extinguished” the meaningfulness of participating in the democratic process, including the right to expression through campaigning, donating and voting.
Heather Ann McConnell, a lawyer representing candidate Chris Moise, volunteer Ish Aderonmu and group Women Win TO, which promotes women candidates, also argued that the legislation created barriers for marginalized people, including visible minorities, women and LGBTQ persons, and “widens the gap” disadvantaged people face in participating in municipal democracy.
The province, which took up most of the afternoon defending the legislation, argued all of those claims should be dismissed because the city is simply a creature of the province that is not afforded constitutional sta- tus and that effective representation — a concept outlined by the Supreme Court — is not a “constitutionally entrenched right” but simply a “policy choice.”
The province created the city, provincial lawyer Robin Basu said, and therefore could also hypothetically “destroy” the city if it chose.
The provincial legal team argued there had been no infringement of charter rights, and that voter parity was a key and pressing reason to introduce the legislation as soon as the government could, despite there being no mention of voter parity by Ford’s government until well after the legislation was tabled.
Voter parity is the concept that all votes should have equal weight and therefore populations between electoral boundaries should be balanced. For example, if one ward had 50,000 people in it and another had 100,000, the votes of the second ward would have half the weight of the first.
Basu argued the city’s 47-ward structure, approved by council in 2016 for the 2018 election, only “partially” solved an existing population imbalance in Toronto became of rapid growth in some areas, and that 25 wards based on federal and provincial riding boundaries achieved better voter parity.
The city has previously argued, and a provincial tribunal agreed, that there is no “significant” difference between the 25- and 47-ward options in terms of voter parity in 2018. That evidence was put before the court on Friday.
“When governments legislate, sometimes there are winners and losers,” Basu said, adding that while there may be political complaints that candidates and electors have been given short shrift by the legislation, those are not constitutional complaints.
Lawyer Steven Barrett said the province had not provided any evidence regarding its claim that council today is dysfunctional — a major reason Ford presented inside and outside the Legislature for introducing the bill.
Even if council could be proven to be dysfunctional, Barrett said, the province also had not made the case that Bill 5 would solve that problem.
At one point in the afternoon, the judge stopped Basu to ask if the Ford government had sought legal advice from the attorney-general’s office before introducing Bill 5.
“I’ll bet the answer’s no,” Belobaba said.
Basu, citing solicitor-client privilege, declined to comment.
The case is the second time a move by Ford’s PC majority government has been tested in court since the June election. An Ontario judge ruled earlier this week that a plan to immediately end rebates for buyers of Tesla electric vehicles should be quashed. Ford’s government reversed course on Friday, agreeing that Tesla buyers, like those of other electric cars, would be eligible for rebates as long as their vehicles are delivered and registered by Sept. 10.
“There’s no precedent like this, your Honour, where a government has interfered midstream in an election. And that simply can’t be justified.”
DIANA DIMMER CITY LAWYER