Giving cities more power is complicated. Protecting their elections isn’t

ANALYSIS: Doug Ford’s move to shrink Toronto city council has revived calls to give municipalities more power. But the easiest path forward, writes John Michael McGrath, would be to amend the Constitution
By John Michael McGrath - Published on Sep 21, 2018
Ontario’s highest court recently confirmed that the Tories’ Bill 5 was, in fact, constitutional. (Nathan Denette/CP)



So that’s that: Ontario’s highest court has granted the provincial government a stay in the matter of Toronto vs. Ontario, the city’s briefly successful attempt to stop Queen’s Park from cutting the size of city council from 47 wards to 25. Technically, the court didn’t overturn the ruling outright; rather, it’s pressed pause until the matter can be considered more fully. But the three-judge ruling didn’t mince words, declaring that the lower-court decision written by Justice Edward Belobaba “stretch(ed) both the wording and the purpose” of Charter rights that apply to free expression.

This confirmation that Bill 5 was constitutional (the Court of Appeals, like the lower court, agreed that Bill 5 was unfair and disruptive), will likely spur more calls for greater autonomy and entrenched guarantees for Canada’s municipalities. Indeed, they’ve already begun: at Toronto city hall last week, councillor Josh Matlow moved a motion — approved 28 to 8 by his colleagues — asking the federal government to establish an unspecified mechanism that would give cities greater autonomy over municipal issues.

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The problem is that Matlow’s motion is a waste of time: municipal matters simply don’t fall within the federal government’s purview. The most the feds could do is defer to municipalities on areas of federal jurisdiction — but does Canada want to give Toronto or Hamilton or Ottawa a vote on everything from banks to railroads to broadcasting? How would that even work?

If we’re honest, Doug Ford’s not the only politician who’s been unwilling to accommodate Toronto. Not that long ago, a substantially less antagonistic premier told John Tory to go pound sand when he and council wanted to toll the Gardiner Expressway and the Don Valley Parkway. Toronto’s position then was, as it so often is, that someone else should pay for the things Toronto wants: if council had gotten its wish, 905 drivers, not Toronto commuters, would have paid the tolls. And that’s part of the reason Kathleen Wynne said no to Tory’s demand.

Matlow’s request for some kind of binding guarantees related to local revenues and land-use planning will face similar obstacles. It’s simply not possible to disentangle local issues from provincial ones (the current premier is, after all, a one-term city councillor and defeated mayoral candidate).

The good news is that it won’t be necessary to untie this particular knot in order to solve the immediate problem. Toronto’s preferred tax and planning policies aren’t the subject of debate right now — the basic integrity of its election is. This is something that we can move to protect relatively easily in the future, although doing so will mean (gasp) amending the Constitution.

Received wisdom tells us that it’s basically impossible to amend the Constitution: you need two-thirds of the provinces and no less than half the country’s population to do it. Any attempt would bring in Quebec’s demands for greater autonomy, Alberta’s demands for changes to equalization funding, and so on. Fortunately, in this case, received wisdom is wrong.

Section 43 of the 1982 Constitution Act says that any one province can amend the Constitution in matters specific to that province if both the province and the federal government cast affirmative votes. In the 1990s, Quebec used the approach to reform its separate religious schools. That provides a useful precedent, as it relates to an area of policy that’s entirely within a province’s jurisdiction and poses no wider national or Charter issues.

So all it takes is a vote at Queen’s Park and then another in the House of Commons and Senate. But what do we want to vote for? Well, in Section 92 of the 1867 constitution, a few reasonable limits could be placed on the province’s jurisdiction over municipalities: for starters, Ontario could be forbidden from changing the rules of municipal voting in the same calendar year as an election. The legislature could also be forbidden from passing laws that change the composition of council or the geographic boundaries of a municipality without a consenting vote from the affected council. More ambitiously, Ontario could declare that in this province, the voting rights guaranteed in Section 3 of the Charter also apply to municipal elections. (New Brunswick has a province-specific section of the Charter for its bilingualism, so this isn’t new ground either.)

Amending Section 92 so as to modestly limit the legislature’s power wouldn’t necessarily create a field day for lawyers. Embedding municipal voting in Section 3, though, might. Municipal elections aren’t exactly competitive everywhere in this province —many mayors and councillors end up simply being acclaimed because they run unopposed. How would that change if the Charter were extended to municipal voting rights? We should think carefully about such questions — but there’s nothing to stop the next government of Ontario from entrenching municipal voting rights in the Constitution.

Still, there are no guarantees in this life: a federal government that thought the Ontario government was playing politics with the Constitution might refuse to vote on an amendment that had passed at Queen’s Park. And even if it did pass, the next government could try to repeal it (though doing so would also require another vote in Ottawa).

But given this week’s events, it’s worth noting that changes to Section 3 of the Charter and Section 92 of the Constitution Act, 1867, wouldn’t be subject to the notwithstanding clause — they couldn’t be reversed by simple legislation if a provincial government didn’t like a court decision.

If voters — and, more important, political parties — think future governments should be prevented from doing what the Tories have done this summer, there’s a relatively clear path forward.

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