Province kicks wards fight up a notch
Lawyers want to submit new evidence justifying Ford city council cut
With the Toronto election over and new councillors soon to take their place at city hall, preparations for the next stage of the ongoing fight over the reduced number of electoral wards are just beginning.
The province filed fresh evidence last weekin an appeal of a judge’s decision that Premier Doug Ford’s council-cutting legislation, Bill 5, was unconstitutional.
That appeal will be heard starting June 10.
Superior Court Justice Edward Belobaba ruled Sept. 10 that the legislation tabled by the former city councillor and his government without prior notice should be stuck down.
But the province was successful in persuading a higher court to stay that decision — essentially putting the court ruling on hold until the appeal is heard.
So the Oct. 22 election went ahead with a 25-ward race instead of the 47 wards approved by council years earlier.
What’s next in the court fight is the June hearing at the Court of Appeal.
In a new motion filed with the court, Crown lawyers representing the province are asking that they be allowed to submit new evidence — which is typically not permitted at the appeal stage.
They argue that Belobaba did not give the province enough time to bring experts, conduct cross-examinations or prepare materials in defence of Bill 5.
“The result was a failure of procedural fairness to Ontario,” the motion says — also noting several experts declined their requests to participate because of the time frame involved.
The new evidence the province wants to submit includes that of two experts.
The first expert is political scientist and University of Chicago Prof. Anthony Fowler, who provided analysis of the Oct. 22 poll and previous elections.
By looking at the makeup of the newly elected council and that of previous elections, Fowler concluded that “the representation of historically under-represented groups — as a proportion of the overall council — did not decrease.”
He noted that 16 per cent of newly elected council members are visible minorities, compared to 9 to 11 per cent in the previous four elections.
As well, the number of women elected was maintained at 32 per cent of council. There is still only one openly LGBTQ member on council.
Fowler also argued that under a47-ward system, there was unlikely to be a greater proportion of minority representatives elected, largely because the distribution of minority residents across wards is similar in each of the different ward systems.
Though Fowler determined incumbency advantage — the likelihood a sitting councillor will be re-elected — was significantly reduced in the most recent election, he noted there were a number of head-to-head incumbent battles and likely looser ties between incumbents and their constituents given the expanded wards.
The expert evidence comes as a response to arguments made earlier from the opposite side of the courtroom. Candidates, community groups and campaign volunteers said Bill 5 infringed their Charter rights to freedom of expression, freedom of association and equality.
Asecond expert who provided evidence for the province was political science professor emeritus Andrew Sancton, who taught at the University of Western Ontario and also provided evidence during an earlier dispute at a provincial tribunal over ward boundaries.
Sancton argued in his affidavit that, among other issues, having 47 councillors “is a recipe for exceptionally long meetings … general disorganization, and a focus on parochialism rather than the best interest of the city as a whole.”
In the coming months, those who fought Bill 5 will respond with materials.
The province’s written arguments also will be filed in court.
The June appeal will be heard by a rare five-member panel of the Court of Appeal after the request for a stay was heard by a three-member panel of judges.
If the court overrules Belobaba and Bill 5 remains intact, the other parties could then appeal to the Supreme Court of Canada.
But first, that court would have to agree to hear the case.
Only then would a hearing would take place in Ottawa — often a years-long process.
If Belobaba’s earlier ruling that Bill 5 is unconstitutional is upheld, it’s not clear what would be the step the court would allow.
The province has indicated it would want time to craft new legislation or an alternative solution in place of Bill 5.