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Doug Ford invokes notwithstanding clause to force cut to Toronto city council

The premier is retaliating against a judge's decision Monday that ruled his legislation unconstitutional.

by Tamara Khandaker
Sep 10 2018, 12:39pm

Via The Canadian Press/Chris Young.

Premier Doug Ford is invoking the notwithstanding clause for the first time in Ontario’s history in a bid to slash Toronto city council by nearly half, just weeks before voters are set to go to the polls.

The premier’s move is in direct retaliation to a decision made Monday by a Superior Court Justice, who overturned a piece of legislation that cut the number of wards in Toronto from 47 to 25 on the grounds that it is unconstitutional.

“The people will decide if they want the (Progressive Conservative) government in four years,” Ford said at a press conference Monday afternoon. “My concern is democracy.”

The notwithstanding clause allows the federal and provincial governments to override certain sections of the Charter of Rights and Freedoms. Ford plans to recall the legislature on Wednesday for debate and to add the clause to Bill 5, the Better Local Government Act.

While there is still confusion over what is going to happen on October 22, it is within the premier's purview to follow through on his threat: all Ford needs to do to invoke the notwithstanding clause is pass a vote in the legislature, where he holds a majority. If he is able to do that before the election, the 25 electoral map will stand.

"The matter before me is unprecedented," wrote Superior Court Justice Edward Belaboba in his ruling on Monday morning. "The Province has clearly crossed the line."

After asking a posing a number of questions regarding the Ford government’s decision to cut the size of council as a way of dealing with the population of certain wards and the choice to do it in the middle of an election, Belaboba responded to himself with a one-word paragraph: “Crickets,” he wrote.

Belaboba found that bringing in Bill 5, the Better Local Government Act, in the middle of an election "substantially interfered" with candidates' freedom of expression under the Charter.

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He also found that the reduction from 47 wards to 25 would’ve substantially interfered with a voter’s freedom of expression under the Charter, in particular their “right to cast a vote that can result in effective representation.”

The cut would have increased the population of a ward from an average of 61,000 to 111,000, aligning them with federal and provincial boundaries.

“Passing a law that changes the City’s electoral districts in the middle of its election and undermines the overall fairness of the election is antithetical to the core principles of our democracy,” he wrote.

There is still uncertainty, however, surrounding the October 22 election, as the Ford government is expected to appeal the decision.

Advance polling is scheduled to begin on Oct. 10, but the council’s lawyers have been instructed to seek a postponement if an appeal is required.

Premier Ford shocked the city when, shortly after taking office, he announced that he would be slashing the size of Toronto city council so that it aligned with the number of provincial and federal representatives, and scrapping the election of some regional chairs. It became law in August.

The move turned the race in Toronto on its head, outraging those who saw it as an affront to democracy. It changed the dynamics of the mayoral race, in particular; one day after Ford announced the legislation, former city planner Jennifer Keesmaat announced she would challenge Mayor John Tory for the top job.

"You can't change the rules in the middle of the game," Tory said in a press conference, welcoming the decision. "The court has agreed with that."

The mayor added that he “does not apologize for one second” for suggesting earlier that there should be a referendum on whether or not the size of council should be reduced.

In a statement, Keesmaat criticized Tory for his initial response to Ford’s actions.

“While today’s ruling is good news, we didn’t have to get here. When the chips were down, John Tory didn’t have our city's back and this entire episode has shown us that we need new leadership at City Hall.”

“Proud and humbled to have stood up for our city, and won,” tweeted candidate Chris Moise, who was part of the court challenge. “Great day for democracy, fairness, and justice - and most importantly, the people of Toronto who will have strong effective local representation!”

Several city councillors also celebrated the decision online.

“Our City, the nearly 2.9 million people who live here, and local democracy was worth defending,” tweeted Joe Cressy. “Today, in the face of a vindictive attack by Doug Ford, we won. Onwards.”

Cover Image: Ontario Premier Doug Ford makes an announcement at the Queens Park legislature in Toronto on Wednesday, August 15, 2018. (The Canadian Press/Chris Young.)