Supreme Court hears cut council arguments

Justices will now decide legality of Ford’s reducing of Toronto wards in 2018

After a one-day virtual hearing on Tuesday, the Supreme Court of Canada must now decide whether Premier Doug Ford’s government was wrong to intervene midway through Toronto’s last municipal election.

In doing so, it has the opportunity to establish new rules in the often fraught relationship between all municipalities and their provinces when it comes to fair and democratic elections.

A written decision from the nine justices — seven of them at the hearing socially distanced in their high-backed red leather chairs in the court chamber and two appearing by video — is not expected for several months.

“This case is about protecting what this court has described as the single most important and protected type of speech, that is expression during an ongoing democratic election,” City of Toronto lawyer Glenn Chu began after several short introductions.

“If the circumstances under which a person selects their representative in democratic government is not protected, then democracy itself is not protected.”

The legal saga between the province of Ontario and the city began in July 2018 when Ford announced legislation that would cut the number of wards in Toronto from 47 to 25.

The move came as a surprise to city officials, who had not been consulted, as well as the public, with no previous mention of such a move during the election campaign nor any discussion at any provincial committee.

At that point, nominations had already closed for a 47ward race and campaigning was well underway. It threw the election into chaos.

Since then, Ford’s law has been the subject of legal arguments at three levels of the justice system.

First, a grassroots group of candidates and voters took their case to the Superior Court. Joined by the city, they won that case and the law was struck down.

But the province appealed and was granted a temporary reprieve by the Court of Appeal, meaning the 2018 election went ahead with 25 wards. Eventually, the appeal court ruled, in a split decision, in the province’s favour.

The city then sought leave to appeal at the Supreme Court, which only hears a handful of cases of significant national or public importance each year.

On Tuesday, the questions the justices asked of the parties — the city, the province and 17 “intervenors” who have an interest in the case and can present legal arguments — got straight to the heart of some key issues, including whether the province infringed freedom of expression rights or if the court can strike down legislation using what are known as unwritten principles of the constitution, such as democracy.

Not all justices seemed convinced of the city’s argument on the latter point, including Justice Russell Brown who questioned Chu, in one of the more animated exchanges of the day, on the “bibbidi-bobbidi magic” of using such an unwritten principle.

“I think most Canadians would be very surprised to hear that there’s a big debate at the Supreme Court about whether it’s all right for provinces to just throw local democracy out the window,” said Mariana Valverde, a professor specializing in urban law and governance at the University of Toronto.

She said despite the city’s bold opening statement, it was being “very modest” in what it was asking the court to do.

“I think a lot of people … are suddenly finding out that provinces have this dictatorial power over municipalities,” Valverde said.

She said just because it isn’t written in the charter that municipalities are granted the same right to effective representation as provincial and federal levels of government, doesn’t mean it has to stay that way.

As a former expert witness in the case for same-sex marriage that was also ultimately decided by the Supreme Court, Valverde noted that protections afforded people based on their sexual orientation weren’t written down before either.

“In Canada, courts have been interpreting the charter and the constitution generally in what is known as a sort of generous interpretation that is acknowledging that times change,” she said.

Osgoode Hall Prof. Bruce Ryder said the hearing showed “the Ontario government’s position is very difficult to defend in constitutional terms.”

He said the court is well aware of its role in creating new law and the ability to create new precedents and was encouraged by the “subtleties” of some of the questions the justices were asking to explore the nuances of the city’s arguments.

Asked Tuesday about the Supreme Court case, the premier said Bill 5 was “the best present I’ve ever given the mayor” because he now only has to deal with 25 councillors — momentarily not remembering if it was 24 of 25 councillors and falsely saying council increased the number of wards to 56.

“Who wants more politicians? It all lines up with the federal, provincial, municipal boundaries, and … they’re more than capable of doing the work.”

“I think a lot of people … are suddenly finding out that provinces have this dictatorial power over municipalities.”

MARIANA VALVERDE UNIVERSITY OF TORONTO