Toronto’s election will proceed with the reduced wards imposed by Premier Doug Ford’s council-slashing bill, the Court of Appeal has ruled.
“While the change brought about by Bill 5 is undoubtedly frustrating for candidates who started campaigning in May 2018, we are not persuaded that their frustration amounts to a substantial interference with their freedom of expression,” wrote the justices in their decision on Wednesday morning.
Bill 5 – or the Better Local Government Act – which went through its first reading on July 30, would cut Toronto’s city council from 47 wards to 25 in the middle of an ongoing election campaign.
Last week, Superior Court Justice Edward Belobaba said Bill 5 would infringe on Charter rights to freedom of expression, a ruling appealed by the provincial government. The Ford government also threatened to use the rarely-invoked notwithstanding clause to overrule Belobaba’s decision.
On Tuesday, intervenors argued that a panel of three justices should not consider the threat of Ontario’s unprecedented use of the notwithstanding clause in their decision-making.
At 10 a.m. Wednesday, Court of Appeal justices wrote that Bill 5 did not, in fact, meaningfully interrupt rights to freedom of expression.
Justices Alexandra Hoy, Robert Sharpe and Gary Trotter found that Belobaba may have “erred in law” by deciding that the timing of the bill resulted in a violation of constitutional rights.
“The question for the courts is not whether Bill 5 is unfair but whether it is unconstitutional,” they wrote.
The minister of municipal affairs and housing, who first introduced the legislation on July 30, reiterated in a statement Wednesday that the Court of Appeal’s stay means they don’t have to push on with Bill 31.
“We will continue working with the Toronto City Clerk to provide every support possible to help with the administration of the election on October 22nd,” wrote Steve Clark.
“This is a very positive result for the people of Toronto. It is time to put the political games behind us. We look forward to working with a City Council that is actually able to get housing, transit and infrastructure built.”
Legal counsel for the City of Toronto made clear in the stay hearing that the Crown had failed to provide evidence that a reduced council size would translate to more efficient local government.
“No other municipality has had this imposed on them,” Diana Dimmer reminded the court.
“The onus is on the province to come forward with evidence that their own interests are irreparably harmed by a 47-ward election.”
Government, opposition trade barbs
An hour after the stay decision was released, Steve Clark and NDP Leader Andrea Horwath traded barbs during Question Period. Ford was in Washington, D.C. Wednesday for NAFTA meetings.
“Bill 5 was introduced by the minister on July 30. But the ministry says that there are no records of the ministry being told to draft the bill,” said Horwath. “But I’m guessing it didn’t appear by magic, so did the all-star minister of municipal affairs and housing draft Bill 5?”
On Monday, NDP member Jessica Bell made public a freedom of information request that showed there were no records found for consultation on Bill 5.
“This is just more political games from the opposition,” said Clark. “I didn’t do a freedom of information on the NDP to find out if they ever used the words ‘efficient and effective local government.’ I think I know there would be no responsive records to that either.”
'Obviously we're not happy with this result'
In an email to National Observer, Gavin Magrath, who represented lawyer and city council candidate Rocco Achampong in the court proceedings, said the Ford government put the court in a strange position.
"Obviously we're not happy with this result," Magrath wrote. "In my view the province came before the court taking the position that it would only respect the court's judgment if it sided with the Crown, which is like many aspects of this case unprecedented and possibly even an abuse of process."
Several first-time candidates who have been fighting Bill 5 as intervenors have said they will not continue to run in a 25-ward system. The legislation was introduced after candidates had registered to run for the 47-ward council.
“I just feel really disappointed,” would-be candidate Chris Moise told reporters Wednesday. “But it’s not over yet – the appeal is still going forth at a later date. Everything is uncertain right now. I got into this because I believe we need a diverse city council. In the 25-ward model, we’re going to have less diversity.”
Moise, who was running in the new city boundary of Ward 25, has said he will not compete in the reduced system.
Ontario Green Party Leader and Guelph MPP Mike Schreiner says there is “question of legitimacy hanging over the Toronto election,” with or without the stay.
“Even though Bill 5 might be legal, it is not right. The premier made a choice to manufacture a crisis rather than respect the people of Toronto by following a proper consultation process to determine the proper size of council,” said Schreiner in a statement.
“This debacle is a window into the extreme measures the Premier will take to get his way. He will waste taxpayers’ money on lawsuits. He will disrespect the judicial system and the rule of law. And he will even sacrifice our democracy in order to consolidate his power.
“The Premier says government should have less power. But his actions say the opposite. Premier Ford will use any means to increase the power of government to pursue his personal political agenda.”
Editor's note: This story was updated with more details at 12:03 p.m., 12:40 p.m. and 1:28 p.m. EST on Wed. Sept. 19, 2018.