Aims to over­ride court rul­ing

Calgary Herald - - FRONT PAGE - Twit­­lyMcPar­land

Kelly mc­pAr­lAnd

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.


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