Doug Ford makes it known that he will not be stopped

ANALYSIS: An Ontario court declared that the premier’s move to cut Toronto’s government in half was unconstitutional. But thanks to the Charter’s notwithstanding clause, that ruling doesn’t matter, writes John Michael McGrath
By John Michael McGrath - Published on Sep 10, 2018
Doug Ford has made cutting the size of Toronto city council one of his government's top priorities. (Chris Young/CP)



Bill 5 is dead. But it’s coming back — and this time the courts won’t be able to stop it.

On Monday morning, Justice Edward Belobaba of the Ontario Superior Court found that the Progressive Conservatives’ Bill 5, the Better Local Government Act, violated Section 2 of the Charter of Rights and Freedoms, which guarantees freedom of expression — which itself includes, Belobaba declared, the right to meaningfully participate in municipal elections.

Belobaba’s ruling is already a dead letter, however, because on Monday afternoon, Premier Doug Ford told reporters that he would call the legislature back into session to pass a presumably identical successor to Bill 5, this time while invoking the so-called notwithstanding clause of the Charter — that is, Section 33, which allows the legislature to pass a law “notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.” He also stated that the government would appeal the court’s decision.

TVO Explainer: What is the notwithstanding clause?

Ford justified the move by stating his opinion that Belobaba’s decision was “deeply concerning and wrong.” For good measure, he dismissed the judge as a Dalton McGuinty appointee — even though Superior Court justices are named by the federal government, not the province.

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Section 33 of the Charter has never been used by Ontario or by the federal government, but it has been used by other provinces. Although its use is often said to amount to “overruling the Charter,” that’s not technically correct: it’s a part of the Charter, included as a compromise measure to ensure provincial support for the document’s adoption in 1982.

The notwithstanding clause has a number of built-in limits. It has to be passed by a legislature (the premier can’t simply declare it with the stroke of a pen), and it’s time-limited: it can only apply to legislation for five years, at which point it needs to be renewed or abandoned.

It also can’t be used any time the courts invoke the Charter — that is, it can’t be used to override protections for provincial or federal voting rights (Section 3) or rules about the length of time between elections or the minimum amount of time a legislature needs to sit (Sections 4 and 5). It also can’t be used to help a government infringe on mobility rights (Section 6).

If the drama around Bill 5 were related to the voting rights laid out in Section 3, Ford and the Tories would’ve been unable to use the notwithstanding clause. But Section 3 includes provincial and federal voting rights only, not municipal. Belobaba relied instead on Section 2’s freedom of expression rights — meaning the door was open for the government to use Section 33 to overrule his decision.

That’s exactly what the Progressive Conservatives are going to do now — and there’s really nothing, at this point, that anyone can do to stop them from passing a successor to Bill 5 before the end of the month.

That means voters in the next Toronto municipal election will choose 25 councillors instead of 47.

It’s worth noting that the government has never tried to defend the urgency with which it's enacted this legislation with anything other than the kind of talking points usually reserved for drive-time AM radio. Belobaba called Bill 5 “profoundly unfair” and found that nothing the government’s lawyers had presented could reasonably explain why the 47-ward election for a city of nearly 3 million people needed to be cancelled by legislative fiat.

This was never a fight the premier needed to pick, and it’s hardly the fault of the attorney general’s office that the government’s lawyers failed to convincingly defend a bill that was slapped together in a hurry with no evidence that it was needed: Belobaba found that, despite the premier’s repeated assertions to the contrary, there was no evidence that council is “dysfunctional.”

It will be interesting to see whether Belobaba’s legal findings withstand scrutiny from a higher court. But his ruling was very nearly the best-case scenario for Toronto’s advocates — and thanks to the notwithstanding clause, it still wasn’t enough.

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