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Toronto the big loser in Supreme Court of Canada decision

The Supreme Court of Canada has narrowly quashed the City of Toronto’s bid to overturn the province’s Better Local Government Act, which cut the number of council seats in Toronto from 47 to 25. And somewhere Doug Ford is licking his chops with the knowledge he can pretty much walk all over the city and not even the highest court in the land will stop him.

For cities, meanwhile, the ruling is not only disappointing but as former Toronto mayor David Miller points out it’s “inconsistent with the modern reality of city governments. Judged by its responsibilities, its budget and population served, Toronto is bigger and more relevant to people’s lives than most provinces.” 

Toronto’s current mayor, John Tory, was less pointed in his appraisal. He noted in a statement that the Supreme Court only grants some 10 per cent of appeals it hears and that the “disposition of the case itself demonstrate[s] the importance of this matter.” 

He said the city would in any event continue to work with the province on responding to the COVID pandemic “and many other decisions for the good of our city and our province.” Given Ford’s history in his time as premier, others on council are not so sure.

The Act came into force on August 14, 2018, shortly after Ford was elected premier, and it threw municipal elections, which had been underway since May in the province, into disarray.

More than 500 candidates had already registered to run in Toronto by the day nominations closed on July 27, including a record number of women and people of colour. The Act forced many longtime councillors to drop out and other incumbents to fight it out with each other. 

The introduction of the Act was widely viewed as an attempt by Ford to interfere in Toronto’s elections. To be sure, there’s no love lost between Ford and many members of council leftover from when his brother was mayor. Critics also pointed out that reducing the number of councillors by half would undermine residents’ access to services. The population of some city ridings is larger than those represented by federal MPs in other provinces. 

The city took the province to court to argue that the law violated the freedom of expression of candidates and voters, contrary to freedom of expression under Section 2(b) of the Canadian Charter Of Rights And Freedoms. It also argued the law violated certain unwritten constitutional principles: to wit, that little thing known as democracy. The Superior Court of Ontario agreed. But the province appealed that decision to the Court of Appeal. In the meantime, elections were held. The Court of Appeal would side with the province and the city appealed to the Supreme Court, which found on the highly technical point that the law did not interfere with democracy.

Writing for the majority, Chief Justice Richard Wagner and Chief Justice Russell Brown, offered that “The candidates and their supporters had 69 days – longer than most federal and provincial election campaigns – to re-orient their messages and freely express themselves according to the new ward structure”.

That assertion may come as a surprise to anyone who remembers the elections. 

Judges on the other side of the issue argued that the timing of the Act “unjustifiably infringed” on Section 2(b) and that changing municipal wards in the middle of an election was “unconstitutional.”

Justice Rosalie Abella stated that “By radically redrawing electoral boundaries during an active election that was almost two-thirds complete, the legislation interfered with the rights of all participants in the electoral process to engage in meaningful reciprocal political discourse.” She noted that the province did not offer any explanation for this late interference. “There was no hint of urgency, nor any overwhelming immediate policy need.”

And there’s the rub.

The Supreme Court decision, says Councillor Paula Fletcher, means that “Toronto residents will continue to be disproportionately represented as the Council wards are the same size as the federal and provincial ridings.” Indeed, the fallout from the passage of the Act has led to an initiative to win Toronto Charter City status

Councillor Josh Matlow, who spearheaded that initiative, calls the Supreme Court’s decision “dangerous to our local democracy. Any provincial government now has licence to interfere with an election if they don’t like the direction it’s heading. That’s banana republic rules. Toronto needs a city charter now.”

@enzodimatteo

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