THE STAR’S VIEW

The fact that Ford will get his way doesn’t make things right,

Legal isn’t necessarily right. Constitutional isn’t necessarily fair.

The Ontario Court of Appeal has handed the Ford government a solid legal victory in its drive to cut Toronto city council in half. It’s a unanimous ruling by a panel of three judges, leaving no doubt that Toronto’s election will be carried out using the 25-ward system that Premier Doug Ford insists on.

But let’s be clear: the fact that Ford will get his way doesn’t make things right. The fact that the province has the power to ram through Bill 5, the law to slash Toronto council half-way through the election campaign, doesn’t mean it should act that way.

The judges themselves were explicit on this point. “The question for the courts,” they wrote, “is not whether Bill 5 is unfair, but whether it is constitutional.” And in that regard, they decided there was a “strong likelihood” that Superior Court Justice Edward Belobaba was wrong to rule that Ford’s bill violated the charter of rights.

Legally, this puts things back to where they stood before Belobaba’s decision. Ford can now drop the law he brought forward to get his way by invoking the notwithstanding clause of the charter.

But just because you put your gun back in your holster doesn’t make people forget you pointed it at them — and threatened to shoot.

Ford has made it terrifyingly clear that he can pull out that weapon anytime he feels like it, and won’t hesitate to do just that.

He did not invoke the notwithstanding clause, something never before used in Ontario for very good reasons, as a last resort on a major issue of principle. It wasn’t done reluctantly, or cautiously.

On the contrary, he brandished it with relish, saying he “won’t be shy” about using it whenever “appointed” judges get in the way of his government, which supposedly incarnates the popular will.

Unelected judges, according to him, aren’t part of his interpretation of “democracy” and can be casually disregarded. Unless, of course, they agree with his government — in which case their rulings can be cited as repositories of wisdom. It’s all about getting his way.

The past10 days also show the fallacy of Ford’s argument that there was no time to pursue his aims through the legal system, that using the notwithstanding clause was fully justified because the clock was ticking down to Toronto’s Oct. 22 election.

As it turns out, the entire manoeuvre was unnecessary. The premier could have simply trusted our well-tested legal system to do its job, and he would have gotten the result he wanted. The Court of Appeal would have gone to work and Bill 5 would have been upheld, as it was on Wednesday.

Instead, he pointedly and deliberately took a route designed to flex his newfound political muscle. He chose the path of maximum disruption, brushing aside decades of restraint by Ontario governments of every political persuasion. His first instinct was to reach for the weapon of last resort.

This is a terrible precedent, and a disturbing sign of how this premier intends to govern over the next four years. Those who shrugged and looked away while he took a wrecking ball to Toronto’s local government should be under no illusion that they will escape Ford’s wrath if they get in his way. Who knows what his next target will be?

Toronto now must deal with the consequences of Ford’s meddling.

The first order of business will be to make sure the election is as fair as possible, under the circumstances. Ford has already effectively robbed voters of eight weeks of proper debate over the pressing issues facing the city; instead of discussing housing, transit, taxes and the rest, candidates have been immersed in debate over Bill 5, Bill 31 and so on — as well as puzzling over where they will actually be running.

Even now, it’s not clear that a fully fair election is possible. City clerk Ulli Watkiss has been warning it will be “virtually impossible” to meet the standards of fairness and transparency the city deserves.

For one thing, advance polls designed to encourage the maximum number of people to vote will be severely curtailed, at best. And going to a 25-ward system inevitably means that fewer new candidates will be successful against entrenched incumbents. This is part of the cost of Ford’s real agenda: sticking it to his old lefty enemies on council. He makes no secret of this.

In the longer run, the city should be looking at how to make the best of the new system. It could start by looking at revitalizing and expanding its system of local neighbourhood councils, as mayoral candidate Jennifer Keesmaat has suggested. Other big cities with relatively few city-wide councillors (like London and Los Angeles) have a robust system of community boards or councils, and Ford could inadvertently be opening the door to better representation at that level.

Beyond that, this entire episode is a wake-up call about the orphan position our cities occupy in Canada’s constitutional order. We’ve always known that municipalities are mere “creatures of the provinces,” in the often-used phrase, but how powerless they are has rarely been made so clear.

There’s no easy fix, given the country’s constitutional structures. But cities have never been more important to solving the problems we face, and the gap between their powers and their responsibilities has never been wider. A better system would give cities at least some constitutionally guaranteed powers.

Short of that, cities will always be at risk of being treated with the kind of contempt that Ford has demonstrated toward Toronto. And their problems will only become more difficult to solve.