Confident and relaxed

The Newmarket Taxpayers Advocacy Group (NTAG) is grilling the Town’s candidates for Mayor and I decide a few days ago to wander down to Madsen’s Greenhouses to see them strut their stuff. 

Unfortunately, the accountant Talib Ansari pulls out at the last moment for personal reasons and so we are left with Joe Wamback, neatly turned out in jacket and tie, standing alone at the lectern. John Taylor has his own spot in front of the NTAG faithful on Wednesday, 3 October.

I last spoke to Joe in May of this year and came away wondering why he wanted to be Mayor. He had no prospectus to speak of; it was pretty much a blank sheet of paper. He wanted more transparency but these days who doesn’t?

Joe appears relaxed as he takes the stage. The acoustics are not great but this isn’t Thomson Hall. It’s a greenhouse with tables and chairs, full of shadows and ferns. He tells us loudly he doesn’t need the microphone. 

"I'm not a politician" 

He starts by reminding us he is not a politician though, in some respects, he behaves just like one. He is fluent and confident on his feet. We all marvel as he presents his glowing credentials to us. He has run a successful company. He spent nine years as an adjudicator in a Federal tribunal. We learn he crafted policies on victim support that are now the law of the land. By any measure it is an impressive CV.

And he is also a proud fiscal conservative. 

The Mayoral contest should provide something for everyone and the withdrawal of Ansari means the vote is not going to splinter three ways. This makes it easier for Joe though he clearly has a mountain to climb. John Taylor has a high profile with the kind of name recognition most politicians would die for.

The evening starts with NTAG President, Teena Bogner, firing pre-prepared questions to Joe. What made you decide to run? What about transparency and oversight? Can you identify and deliver cost savings? What do you think about Mulock Farm, the mooted new library and Newmarket Theatre which limps along carrying an annual deficit of $750,000. There is plenty of red meat there to get his teeth into.

The hunt for "cost savings"

Now I am listening to a series of intelligent questions from an engaged audience who live, breathe and dream cost savings and “efficiencies”. I too believe public money should be well spent but I live in a different part of the forest where people are more likely to see the benefits of public spending.

The questions don’t wrong foot Joe who is in turns combative and quietly sympathetic. A new senior centre and library? He understands. He says he is a senior himself.

He wants to see affordable housing on the 12 acre site at Mulock Farm – while preserving the park. He is trying to have his cake and eat it. Joe tells us: 

“We do not need a Central Park.”

On the proposed GO Rail station at Mulock Drive he is uncompromising. It’s not going to happen. The overpass or underpass would be very difficult from an engineering perspective and would, in any event, be prohibitively expensive. The new station is just not needed. It is too close to the Tannery on Davis Drive and Aurora. He is also concerned about the 281 jobs that would be lost if and when the land around the station is redeveloped. Joe skilfully refers to the number of families likely to be affected and condemns the $250,000 the Town is spending on its Mulock Secondary Plan. The car showrooms would go to make way for higher density development – the quid pro quo Metrolinx insists on as the price for getting the new station.

No to Mulock Station

As I listen to Joe I am shaking my head, imperceptibly. It is one thing for Doug Ford to axe Mulock Station to “save money”. It is quite another matter for the Town’s Mayor to sabotage an initiative which in the medium to long term will bring huge benefits to the area and to Newmarket as a whole.

We shouldn't turn down the offer of a new GO Rail station. But Joe Wamback says we don't need it.

Now Joe is telling us he wants to relocate the Eagle Street GO Bus Station to the Tannery. As I’ve been advocating this for years I decide to award him a brownie point. 

Now he is talking about building a new parking structure at Davis Drive.

He fields questions about the future of Hollingsworth arena, telling us the Town shouldn’t be a developer itself but should partner with the private sector. 

He is animated and energised about marijuana. It’s is a done deal. It’s gonna be legal. It’s impossible to wind back the clock but the Town can pass by-laws regulating the locations of shops selling the stuff. He is sceptical of bike lanes and would get rid of the waist-high yellow posts along the road that delineate them. He reads his audience well and knows this will get a laugh – which it does. Now he tells us:

“My heart is as big as anyone’s for those that need help most.”

But in the next breath – and just in case you doubt where he is coming from - he makes it clear taxpayers’ dollars are a limited resource. 

Contracting out Town services

He ridicules the idea of the Town becoming an internet provider and warns against encroaching on the private sector’s turf. But he goes further. He says the Town has a staff of 800 and we should be looking at ways of contracting out some of the services that are currently provided in-house. He doesn’t specify which and no-one asks.

Joe is not prepared to argue the case for amalgamating municipalities to save cash but he doesn’t see any reason why particular (unspecified) services cannot be shared. This is unexceptional stuff coming straight from the standard Conservative play book.

Now someone is asking him where he has been for the past four or more years. He has been the invisible man. He says he had to take a low profile and steer clear of controversy as a condition of his work as an adjudicator. Fair enough, but neither was he following events that have convulsed the Town over recent years. Last night he confessed to knowing nothing about the Newmarket soccer loan controversy. That surprised me but I suppose it shouldn’t have.

Now we are talking about the role of the Mayor and the Town bureaucracy. He believes in term limits – eight years would do nicely – as

“We need new blood and new ideas.”

The ideas, he says, come through the staff – the Bob Sheltons of this world – and the job of the Mayor is to make things happen. Seeking funding. Bending ears and, perhaps, twisting arms. Who knows?

Oh dear!

This dismays me.

Of course full time senior staff will have their own views on how the Town should grow and develop but to pass the initiative to them to “come up with new ideas” is to misunderstand the role of elected members. 

“I like Doug Ford”

Someone asks him what he will do if he loses. 

It is no big deal. He and Lozanne will move on to the next thing – whatever that may be. He repeats what he told me in May:

“I am not doing this for the money.”

The Chamber of Commerce debate next Wednesday (26 September 2016) promises to be a compelling clash of ideas and approaches. 

His opponent, John Taylor, is by nature and inclination an interventionist (though in a careful, prudent and “don’t frighten the horses” kind of way) and Wamback is a true-blue, dyed-in-the-wool Conservative. Joe tells us:

“I like Doug Ford.”

This man, Joe Wamback, tells it as he sees it. He is not going to dance around the issues. So I hope the format next Wednesday allows the two of them the briefest of pleasantries before locking horns.

They have very different approaches to running the Town and we have a clear choice in front of us.

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Update: Newmarket Today's coverage of the event is here.

Christine Elliott is my MPP.

She steadfastly refuses to tell me if she was in favour of the direct election of the Chair of Durham Regional Council when she was MPP for Whitby-Oshawa. 

It is not a trick question.

I want my MPP to tell me where she stands on a major issue of public policy - the election or appointment of the Chairs of Regional Councils. 

Instead of a crisp straightforward answer all I hear is silence.

Durham Regional Council has elected its Chair by the voters at large since 2014. A municipal referendum was held in 2010 where a large majority of voters favoured direct election. The referendum failed because the number of voters participating did not reach the specified threshold. But the Regional Council persuaded the Minister to intervene.

Bill 31 – the Efficient Local Government Act – comes back to the floor of Queen’s Park at one-minute past midnight tonight (17 September 2018) recreating the provisions of Bill 5 – the Better Local Government Act – and separating the regional sheep from the regional goats. 

The Head of Council (Regional Chair) in York, Peel, Niagara and Muskoka will be appointed by members of the regional council. But in Halton, Durham and Waterloo the voters at large will decide.

Understandably, the entire focus of the debate so far has been on Toronto City Council. Mr Justice Belobaba declined to involve himself in how Regional Chairs are to be elected, concentrating on what he believed was the primary issue - the Province intervening in an election which was already underway.

But the manner in which Regional Chairs are selected is an issue that won’t disappear.

York region’s population is bigger than PEI, Newfoundland, Labrador, New Brunswick, Nova Scotia, Saskatchewan, and is rapidly closing on Manitoba. Yet the person who leads York region is indirectly elected by 20 people.

On 26 July 2018, York Region Chair, Wayne Emmerson, announced he would be withdrawing from the race to become the first directly elected chair: 

“I have made this decision with the full support of my family. It is a difficult decision, but it is the right decision for me and those close to me.”

On 27 July 2018, Emmerson tells the press:

“I love the job and I want to be able to do what I can for the region of York and the residents of the region of York. I’ve been thinking about it more and I’m going to go back in. I’ve changed my mind and I’m going to run for regional chair (appointment).”

In 2014, an anomaly in the provincial Municipal Conflict of Interest Act allowed Frank Dale to vote for himself as Chair of Peel Region, in a ballot he otherwise would have lost.

Now tell me indirect election beats asking the voters at large.

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Update: Watch former Newmarket-Aurora MPP Chris Ballard discuss the cancellation of the elections for Regional Chairs on Steve Paikin's "The Agenda" aired on 19 September 2018.

Former Liberal Transportation Minister, Steven Del Duca, today brands Doug Ford a hypocrite for abolishing direct elections for Regional Chairs while telling the media yesterday:

“I was elected … and the judge was appointed” 

In an opinion piece in the Toronto Star Del Duca, a former candidate for York Regional Chair who has been biting his tongue since the planned elections were cancelled, says Ford clearly believes:

appointed office-holders are not as legitimate as those chosen by the people. 

Putting aside the absurdity and the dangerousness of his assault on the independence and freedom of the judiciary, Ford’s latest comments are ironic and hypocritical. 

How can it be that the premier believes a resident in Peel shouldn’t have the right to vote for their regional chair, when someone living nearby in Halton does? 

And given we now know Ford believes elected officials are “above” appointed officials somehow, will he treat the elected regional chairs of Durham, Halton and Waterloo better than he will the appointed chairs of Peel, York, Niagara and Muskoka?

Fair point.

A majority of current members of York Regional Council prefer appointing the Regional Chair – with all the accompanying back-room deals and trade-offs - rather than risk asking the voters. Some of them - such as Aurora's ineffective Geoffrey Dawe - are impertinently standing for re-election on 22 October. Here is the list:  

Doug Ford

In favour of direct election by the voters at large: Joe Li (Markham), John Taylor (Newmarket), Justin Altmann (Whitchurch-Stouffville), Nirmala Armstrong (Markham) and Jim Jones (Markham).

Against direct election: Steve Pellegrini (King), Margaret Quirk (Georgina), Gino Rosatti (Vaughan), Frank Scarpitti (Markham), Vito Spatafora (Richmond Hill), Tony Van Bynen (Newmarket), David Barrow (Richmond Hill), Maurizio Bevilacqua (Vaughan), Geoffrey Dawe (Aurora), Michael Di Biase (Vaughan), Mario Ferri (Vaughan), Virginia Hackson (East Gwillimbury), Jack Heath (Markham), Brenda Hogg (Richmond Hill).

Ford promises a Free vote. 

Yesterday, Ford promised a free vote to PC MPPs  on the reintroduced Bill 5. Here is the exchange during his Press Conference:

Reporter: “On Wednesday you’ll have to introduce debate on the “Notwithstanding Clause”. In voting the notwithstanding clause will this be a whipped vote? Will you be forcing… the Tories have a majority… but will you be forcing your MPPs to vote for this initiative or will this be a free vote?

Ford: “It is a free vote. I don’t believe, my friends, in whipping the vote. Our team is together on this. Our Cabinet is 1000% behind this decision. And we just don’t go out there and put laws out there willy-nilly. We consult.

We consult with our Cabinet. We go back to the election and to the promises we made and what we were democratically elected on. And we are going to fulfil those promises to the people of Ontario because they are the judge and jury of the people of Ontario. And when we cross that line that’s very concerning to me as Premier.”

Ford had of course already decided on the Government's response to Mr Justice Belobaba's ruling before the Cabinet had time to meet.

Party Discipline

Party discipline is very strong at Queen’s Park and I suspect very few, if any, will wish to take up Il Duce's offer, fearing it will damage their standing in his eyes.

But wouldn’t it be refreshing if one or two PC members were to voice their concerns? 

Admittedly it would be pure Alice in Wonderland to expect Caroline Mulroney to express any reservations. She is, after all, Attorney General. 

But what about Christine Elliott? Another lawyer. Will she deconstruct Mr Justice Belobaba’s ruling tomorrow? Telling us how he got it all wrong.

Or will she be Miss Invisible and stay away?

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It was an extraordinary news conference

Doug Ford doesn't like lawyers. The Renata Ford story broke on the eve of the election. It is still up-in-the-air.

Premier Doug Ford is in high dudgeon, attacking this morning’s Court ruling by Mr Justice Belobaba which orders a 47 Ward election in Toronto on 22 October.

Ford says he will invoke section 33 of the Charter of Rights and Freedoms – a legislative override never before used in Ontario – to force an election in 25 Wards.

Ford is also appealing the Court ruling.

He is calling an emergency meeting of the Cabinet - no doubt to tell Christine Elliott and Caroline Mulroney what he has already decided. 

Queen’s Park will return on Wednesday to pass Bill 5 again using the Charter’s “notwithstanding clause 33”.

Ford is flabbergasted by the Court. He says he respects the Judiciary and then, in the same breath, points out he was elected and the Judge was appointed by Dalton McGuinty. 

Ford has an untutored one-dimensional view of democracy where there are few if any checks and balances on the Government. He mentions the power of the mandate despite the fact that cutting Toronto City Council by half never featured at all in the election campaign. He believes people power is being usurped by unaccountable Judges. 

He says the only people in favour of the 47 Ward structure are left wing councillors and activists. 

“A lot of these councillors couldn’t get a job if they weren’t a councillor.”

Ford calls in aid “constitutional experts” who apparently fell off their chairs when they heard the decision – so unexpected was it.

This is typical Ford bluster. I suspect there will be plenty of constitutional experts who agree with Mr Justice Belobaba’s reasoning.

His ruling is pasted below in its entirety. 

Ford should read it before Wednesday.

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_____________________________________

 

CITATION: City of Toronto et al v. Ontario (Attorney General), 2018 ONSC 5151 COURT FILES NO.: CV-18-603797 CV-18-602494 CV-18-603633 

BETWEEN: 

ONTARIO 

SUPERIOR COURT OF JUSTICE 

CITY OF TORONTO 

and 

ATTORNEY GENERAL OF ONTARIO 

ROCCO ACHAMPONG 

and 

AND BETWEEN: 

Applicant 

Respondent 

Applicant 

ONTARIO (HON. DOUG FORD, PREMIER OF ONTARIO), ONTARIO (ATTORNEY GENERAL) and CITY OF TORONTO 

Respondents ______________________________________________________________________ 

AND BETWEEN: 

CHRIS MOISE, ISH ADERONMU, and PRABHA KHOSLA, on her own behalf and on behalf of all members of Women Win TO 

and 

DATE: 20180910 

Applicants 

- Page 2 - 

ATTORNEY GENERAL OF ONTARIO 

Respondent ________________________________________________________________________ 

INTERVENORS 

􏰒Jennifer Hollett, Lily Cheng, Susan Dexter, Geoffrey Kettel and Dyanoosh Youssefi, supporting the Applicants 

  • 􏰒  Toronto District School Board, supporting the Applicants 
  • 􏰒  Canadian Taxpayers Federation, supporting the Province ________________________________________________________________________

BEFORE: Justice Edward P. Belobaba
COUNSEL: Diana W. Dimmer, Glen K.L. Chu and Philip Chan for the City of Toronto 

Gavin McGrath, Rocco K. Achampong, and Selwyn Pieters for Applicant Rocco Achampong 

Howard Goldblatt, Steven M. Barrett, Christina Davies, Heather Ann McConnell and Geetha Philipupillai for Applicants Chris Moise, Ish Aderonmu and Prabha Khosla on her own behalf and on behalf of Women Win TO 

Robin Basu, Yashoda Ranganathan and Audra Ranalli for the Respondent Attorney General of Ontario 

Donald K. Eady. Caroline V. (Nini) Jones and Jodi Martin for Intervenors Jennifer Hollett, Lily Cheng, Susan Dexter, Geoffrey Kettel and Dyanoosh Y oussefi 

Derek Bell and Ashley Boyes for Intervenor Canadian Taxpayer Federation 

Patrick Cotter for Intervenor Toronto District School Board HEARD: August 31, 2018 

Challenge to Provincial Bill 5 - Better Local Government Act, 2018 Reasons for Decision 

 

- Page 3 - 

Justice Edward P. Belobaba: 

[1] These applications, brought on an urgent basis, challenge the constitutional validity of Bill 5, also known as the Better Local Government Act, 2018.1 For ease of reference, I will refer to the impugned provincial enactment as Bill 5 and I will refer to the provisions that are being challenged - that is, the provisions that change the number of wards and councillors from 47 to 25 - as the Impugned Provisions. 

[2] Given the pressing need for a timely decision, I will forego a detailed analysis of every legal issue raised in this proceeding or the case law that pertains to these issues. I will focus primarily on the issues and authorities that, in my view, are the most determinative. 

The unprecedented nature of the case before me 

[3] The matter before me is unprecedented. The provincial legislature enacted Bill 5, radically redrawing the City of Toronto’s electoral districts, in the middle of the City’s election. 

[4] The election period for Toronto City Council began on May 1, 2018 and was based on a 47-ward structure. Election day is October 22, 2018. At the end of July, shortly after taking power, the newly elected Ontario government announced that it would enact legislation directed primarily at the City of Toronto, reducing the number of City wards and councillors from 47 to 25 and de facto doubling the ward populations from an average of 61,000 to 111,000. 

[5] Bill 5 received first reading on July 30, second reading on August 2, 7 and 8 and Royal Assent on August 14, 2018. Bill 5 took immediate effect in the middle of August, by which point some 509 candidates for the October 22 election had been certified, the candidates were in the midst of their campaigns and the City Clerk's preparations for a 47-ward election were well underway. 

[6] The enactment of provincial legislation radically changing the number and size of a city’s electoral districts in the middle of the city’s election is without parallel in Canadian history. Here is how the City of Toronto put it in the opening line of its factum: 

Never before has a Canadian government meddled with democracy like the Province of Ontario did when, without notice, it fundamentally altered the City of Toronto's governance structure in the middle of the City's election. 

1 S.O. 2018, c. 11. 

 

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[7] Most people would agree that changing the rules in the middle of the game is profoundly unfair. The question for the court, however, is not whether Bill 5 is unfair. The question is whether the enactment of Bill 5 is unconstitutional. 

Decision 

[8] I am acutely aware of the appropriate role of the court in reviewing duly enacted federal or provincial legislation and the importance of judges exercising judicial deference and restraint. It is only when a democratically elected government has clearly crossed the line that the “judicial umpire” should intervene. 

[9] The Province has clearly crossed the line. 

[10] For the reasons set out below, I find that the Impugned Provisions of Bill 5 substantially interfered with both the candidate’s and the voter’s right to freedom of expression as guaranteed under section 2(b) of the Canadian Charter of Rights and Freedoms. I further find, on the evidence before me, that these breaches cannot be saved or justified under section 1.2 

[11] The Impugned Provisions are unconstitutional and are set aside under s. 52 of the Constitution Act, 1982. The October 22 election shall proceed as scheduled but on the basis of 47 wards, not 25. If the Province wishes to enact another Bill 5-type law at some future date to affect future City elections, it may certainly attempt to do so. As things now stand – and until a constitutionally valid provincial law says otherwise - the City has 47 wards. 

Arguments other than s. 2(b) of the Charter 

[12] The applicants and intervenors advanced a number of Charter and non-Charter arguments in addition to s. 2(b), namely that the Impugned Provisions breached association and equality rights under ss. 2(d) and 15(1) of the Charter, and the unwritten constitutional principles of the rule of law and democracy. 

2 I make no ruling in relation to the provisions in Bill 5 that change the selection process for the regional chairs in York, Peel, Niagara and Muskoka from election to appointment. I recognize that Mr. Achampong included a challenge to these provisions in his application and filed a supporting affidavit from the campaign manager of a candidate in York Region. However, the Achampong application asks that Bill 5 be “stayed”, a remedy that was not requested by any other applicant and is not being granted here because it requires a very different legal analysis: see Manitoba (A.G.) v. Metropolitan Stores Ltd. [1987] 1 S.C.R. 110. A more complete legal and evidentiary basis would be needed before this court could comfortably consider a challenge to the provisions in Bill 5 that deal with the appointment of the four regional chairs. 

 

- Page 5 - 

[13] I am inclined to agree with the Province that none of these additional submissions can prevail on the facts herein. However, I make no actual finding in this regard. The ss. 2(d) and 15(1) submissions, together with the rule of law and democracy submissions, may live another day, perhaps to be litigated in another court. It is sufficient for my decision today to focus only on s. 2(b) of the Charter and the guarantee of freedom of expression. 

Analysis 

[14] Several preliminary points should be made clear before I explain why the Impugned Provisions infringe s. 2(b) of the Charter. 

[15] First, there is no dispute that the Province has plenary authority under s. 92(8) of the Constitution Act, 1867 to pass laws in relation to “Municipal Institutions in the Province”. Assuming the law falls under s. 92(8), or indeed any other provincial head of power, the Province can pass a law that is wrong-headed, unfair or even “draconian.”3 

[16] The only proviso, and it is an important one, is that any such legislation must comply with the Charter (and, arguably, any applicable unwritten constitutional norms and principles). As long as a statute is “neither ultra vires nor contrary to the [Charter], courts have no role to supervise the exercise of legislative power.”4 The remedy for bad laws that are otherwise intra vires and Charter-compliant is the ballot box, not judicial review.5 

[17] Second, a federal or provincial legislature is sovereign and cannot bind itself. The provincial legislature can over-rule or contradict a previously enacted law. A subsequent enactment that is inconsistent with an earlier enactment is deemed to impliedly repeal the earlier enactment to the extent of the inconsistency.6 Thus, the argument that the City of Toronto Act7 somehow imposed an immutable obligation to consult cannot succeed. The 

Babcock v Canada (Attorney General), [2002] 3 S.C.R. 3, at para. 57. 

Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525, at para. 85. 

British Columbia v. Imperial Tobacco Canada Ltd., [2005] 2 S.C.R. 473 at para. 66. Also see East York v. Ontario (Attorney General), [1997] O.J. No. 4100 at para. 12: “[C]ourts can only provide remedies for the public grievances if those grievances violate legal as opposed to political proprieties. What is politically controversial is not necessarily constitutionally impermissible.” 

6 Sullivan, Sullivan on the Construction of Statutes, (6th ed.) at para 11.64. 

7 S.O. 2006, c. 11, Sch. A., ss. 6(1) and (2). Also see s. 6 of the Toronto-Ontario Cooperation and Consultation Agreement which provides that Ontario shall consult with the City on, among other things, "[a]ny proposed change in legislation or regulation that, in Ontario’s opinion, will have a significant ... impact on the City". However, s. 14 of the same Agreement provides that a failure to abide by any of its terms does not give rise to any legal remedy. 

 

- Page 6 - 

Province was entitled to enact Bill 5 and ignore completely the promise to consult that was set out in the previous law. 

[18] Third, speaking broadly and again absent a constitutional issue, the provincial legislature has no obligation to consult and no obligation of procedural fairness.8 The doctrine of legitimate expectations, an aspect of procedural fairness, does not apply to legislative enactments.9 

[19] At first glance, Bill 5 although controversial in content appears to fall squarely within the province’s legislative competence. Upon closer examination of the surrounding circumstances, however, one discovers at least two constitutional deficiencies that cannot be justified in a free and democratic society. The first relates to the timing of the law and its impact on candidates; the second to its content and its impact on voters. 

[20] As I explain in more detail below, the Impugned Provisions breach s. 2(b) of the Charter in two ways: (i) because the Bill was enacted in the middle of an ongoing election campaign, it breached the municipal candidate’s freedom of expression and (ii) because Bill 5 almost doubled the population size of City wards from an average of 61,000 to an average of 111,000, it breached the municipal voter’s right to cast a vote that can result in effective representation. 

[21] Either breach by itself is sufficient to support a court order declaring that the Impugned Provisions are of no force or effect. 

(1) Breach of the candidate’s freedom of expression 

[22] Section 2(b) of the Charter guarantees “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.” Although set out in the Charter, the Supreme Court has made clear that freedom of expression did not originate in the Charter but was entrenched in the Constitution in 1982 as “one of the most fundamental values of our society.”10 

8 The obligation of procedural fairness materializes at the level of subordinate legislation and in the judicial review of the administrative actions of agencies and tribunals – not at the level of primary legislation such as Bill 5 herein. 

Old St Boniface Residents Assn Inc v Winnipeg (City), [1990] 3 S.C.R. 1170 at para 74; Canada (A.G.) v Mavi, [2011] 2 S.C.R. 504 at paras 44, 68-69; and Reference re Canada Assistance Plan, supra, note 4, at paras 58-61. 

10 Libman v Quebec (Attorney General), [1997] 3 S.C.R. 569, at para. 28. 

 

- Page 7 - 

[23] The Supreme Court has frequently and consistently held that freedom of expression is of crucial importance in a democratic society.11 All the more so when freedom of expression is engaged in the political realm. Political expression is at the very heart of the values sought to be protected by the freedom of expression guaranteed by s. 2(b) of the Charter.12 Here is how the Court put it in Keegstra:

The connection between freedom of expression and the political process is perhaps the linchpin of the s. 2(b) guarantee, and the nature of this connection is largely derived from the Canadian commitment to democracy. Freedom of expression is a crucial aspect of the democratic commitment, not merely because it permits the best policies to be chosen from among a wide array of proffered options, but additionally because it helps to ensure that participation in the political process is open to all persons.13 

[24] The Supreme Court has encouraged a broad interpretation of freedom of expression that extends the guarantee to as many expressive activities as possible. The Court has made clear that any activity or communication that conveys or attempts to convey meaning (and does not involve violence) is covered by the guarantee in s. 2(b) of the Charter.14 

[25] It follows from this that the freedom of expression guarantee extends not only to candidates but to every participant in a political election campaign, including volunteers, financial supporters and voters.15 Each of them would have a genuine s. 2(b) issue with Bill 5. However, for ease of understanding, I will focus only on the candidates. 

[26] In a section 2(b) claim, the Court asks two questions: first, whether the activity in question falls within the scope of freedom of expression, and secondly, whether the purpose or effect of the legislation is to interfere with that expression.16 

11 Ibid. 

12 Ibid at para. 29. 

13 R. v. Keegstra, [1990] 3 S.C.R. 697 at 763-64. 

14 Libmansupra, note 10, at para. 29. 

15 Harper v Canada (Attorney General), 2004 SCC 33 at paras 15 and 20; Vancouver Sun (Re), 2004 SCC 43 at para. 26; Taman v Canada (Attorney General), 2015 FC 1155 at para 41. 

16 Irwin Toy Ltd. V. Quebec (Attorney General), [1989] 1 S.C.R. 927 at 978. 

 

- Page 8 - 

[27] The expressive activity of candidates competing in the City’s ongoing election obviously falls within the scope of s. 2(b). The more pertinent question is whether their freedom of expression has been infringed by the enactment of Bill 5. That is, whether the enactment of Bill 5 changing the electoral districts in the middle of the City’s election campaign substantially interfered with the candidate’s right to freedom of expression.17 

[28] Perhaps the better question is “How could it not?” 

[29] The evidence is that the candidates began the election campaign on or about May 1, 2018 on the basis of a 47-ward structure and on the reasonable assumption that the 47- ward structure would not be changed mid-stream. The 47-ward structure informed their decision about where to run, what to say, how to raise money and how to publicize their views. When Bill 5 took effect on August 14, mid-way through the election campaign, most of the candidates had already produced campaign material such as websites and pamphlets that were expressly tied to the ward in which they were running. A great deal of the candidate’s time and money had been invested within the boundaries of a particular ward when the ward numbers and sizes were suddenly changed. 

[30] Bill 5 radically altered the City’s electoral districts, in most cases doubling both their physical size and the number of potential voters. The immediate impact of Bill 5 was wide-spread confusion and uncertainty. There was confusion about where to run, how to best refashion one’s political message and reorganize one’s campaign, how to attract additional financial support, and what to do about all the wasted campaign literature and other material. There was uncertainty flowing from the court challenge, the possibility that the court challenge might succeed and the consequences for all concerned if this were to happen. 

[31] The evidence is that the candidates spent more time on doorsteps addressing the confusing state of affairs with potential voters than discussing relevant political issues. The candidates’ efforts to convey their political message about the issues in their particular ward were severely frustrated and disrupted. Some candidates persevered; others dropped out of the race entirely. 

17 The case law is clear that the Charter cannot be subdivided into two kinds of guarantees - freedoms and rights. The freedom to do a thing, when guaranteed by the Constitution and interpreted purposively, implies a right to do it. Hence, I say “the right to freedom of expression”. See Ontario (Attorney General) v. Fraser, [2011] 2 S.C.R. 3, at para. 67. 

 

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[32] There can be no doubt on the evidence before the court that Bill 5 substantially interfered with the candidate’s ability to effectively communicate his or her political message to the relevant voters. 

[33] This is not a situation where a provincial law changing the number and size of the City’s electoral districts was enacted say six months before the start of the City’s election period. Had this happened, the law would not have interfered with any candidate’s freedom of expression and no candidate could have alleged otherwise. The Province is right to say that s. 2(b) of the Charter does not guarantee a 47-ward election platform. 

[34] Here, the law changing the City’s electoral districts was enacted in the middle of the City’s election. This mid-stream legislative intervention not only interfered with the candidate’s freedom of expression, it undermined an otherwise fair and equitable election process. 

[35] Electoral fairness is a fundamental value of democracy.18 As the Court noted in Libman,19 the principle of electoral fairness flows directly from a principle entrenched in the Constitution: the political equality of citizens. Elections are fair and equitable only if candidates are given a reasonable opportunity to present their positions.20 

[36] Here, as already noted, because Bill 5 took effect in the middle of the City’s election, candidates were not given a reasonable opportunity to present their positions. The enactment and imposition of Bill 5, radically redrawing the electoral districts in the middle of the electoral process undermined the very notion of a “fair and equitable” election. 

[37] Once the Province has entered the field and provided an electoral process, it may not suddenly and in the middle of this electoral process impose new rules that undermine an otherwise fair election and substantially interfere with the candidates’ freedom of expression. Indeed, as the Supreme Court’s decision in Libman21 makes clear, where a democratic platform is provided (in that case a referendum, here a 47-ward election structure), and the election has begun, expressive activity in connection with that 

18 Figueroa v. Canada (Attorney General), 2003 SCC 37, at para. 50. 19 Libman, supra, note 10.
20 Ibid at para 47; Figueroa,supra, note 18, at para 51.
21 Libmansupra, note 10. 

 

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platform is protected against legislative interference under the traditional Irwin Toy analysis which focuses on substantial interference.22 

[38] I have no difficulty finding on the evidence before me that the enactment of Bill 5 changing the number and size of the electoral districts in the middle of the election campaign substantially interfered with the candidate’s freedom of expression. A breach of the municipal candidate’s right to freedom of expression under s. 2(b) of the Charter has been established. 

[39] I now turn to the municipal voter’s right under the same provision of the Charter. 

(2) Breach of the municipal voter’s right to freedom of expression 

[40] I begin with three propositions that are not in dispute. First, the most fundamental of our rights in a democratic society is the right to vote.23 Absent a right to vote, democracy cannot exist.24 Second, voting is an expressive activity, indeed the “most important expressive activity” 25 and is fully protected under s. 2(b) of the Charter. Third, the right to vote is, in essence, the right to “effective representation” and not just voter parity. 

[41] As the Supreme Court concluded in the Saskatchewan Reference:26 

[T]he purpose of the right to vote enshrined in s. 3 of the Charter is not equality of voting power per se, but the right to "effective representation". Ours is a representative democracy. Each citizen is entitled to be represented in government. Representation comprehends the idea of having a voice in the deliberations of government as well as the idea of the right to bring one's grievances and concerns to the attention of one's government representative ... elected representatives function in two roles - legislative and what has been termed the "ombudsman role". 

22 Ibid at paras. 28 to 37. Also see Ontario (Public Safety and Security) vCriminal Lawyers’ Association, [2010] 1 S.C.R. 815 and Frasersupra, note 17, at paras 46 and 69-70. 

23 Reference re Provincial Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158 at para. 1. 24 Haig v. Canada (Chief Electoral Officer), [1993] 2 S.C.R. 995, at para. 104.
25 Ibid at para. 158.
26 Saskatchewan Reference, supra, note 23, at para. 49. 

 

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[42] City councillors obviously function in both roles, legislative and ombudsman – in the former role when debating and passing bylaws or other resolutions; and in the latter role when handling the myriad of constituents’ grievances and concerns that find their way to their desks. 

[43] The important legal issue is whether the comments by the Supreme Court about effective representation, made in the context of s. 3 of the Charter (which guarantees every citizen’s right to vote in a federal or provincial election, but not a municipal election), can also apply in the context of a municipal election. Can the concept of effective representation inform this court’s analysis of the municipal voter’s rights under s. 2(b) of the Charter? 

[44] In my view it can, for the following reasons. 

[45] The concept of effective representation is not rooted in s. 3 of the Charter. Its origins can be traced back to Canada’s founding fathers and the early debates about the appropriate design of electoral districts. As the Supreme Court explained in the Saskatchewan Reference

[P]arity of voting power, though of prime importance, is not the only factor to be taken into account in ensuring effective representation. Sir John A. Macdonald in introducing the Act to re-adjust the Representation in the House of Commons, S.C. l872, c. 13, recognized this fundamental fact (House of Commons Debates, Vol. III, 4th Sess., p. 926 (June 1, 1872)): 

[I]t will be found that ... while the principle of population was considered to a very great extent, other considerations were also held to have weight; so that different interests, classes and localities should be fairly represented, that the principle of numbers should not be the only one. 27 

[46] Even if the concept of effective representation is found to have its origins in s. 3 of the Charter, there is no principled reason why in an appropriate case the “effective representation” value cannot inform other related Charter provisions such as the voter’s right to freedom of expression under s. 2(b). The Charter of Rights is not comprised of watertight compartments. As the Supreme Court noted in Baier v. Alberta,28 “Charter

27 Ibid at para. 51.
28 Baier v Alberta, [2007] 2 S.C.R. 673 

 

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rights overlap and cannot be pigeonholed.”29 And, as this court noted in DeJong,30 the rights enshrined in s. 3 “have a close relationship to freedom of expression and to the communication of ideas ... there is an affinity between ss. 3 and 2(b) (freedom of expression) of the Charter.”31 

[47] If voting is indeed one of the most important expressive activities in a free and democratic society, then it follows that any judicial analysis of its scope and content under the freedom of expression guarantee should acknowledge and accommodate voting’s core purpose, namely effective representation. That is, the voter’s freedom of expression must include her right to cast a vote that can result in meaningful and effective representation. 

[48] The following caution from the Supreme Court in Haig32 has direct application on the facts herein: 

While s. 2(b) of the Charter does not include any right to any particular means of expression, where a government chooses to provide one, it must do so in a fashion that is consistent with the Constitution.33 

[49] In other words, even though s. 2(b) does not guarantee a right to vote in municipal elections, if such an expressive right has been provided by the provincial government, then the right so provided must be consistent with and not in breach of the Constitution. 

[50] Here, the Province has statutorily provided for a resident’s right to vote in municipal elections, including the upcoming election in the City of Toronto.34 This right, having been provided, must be provided “in a fashion that is consistent with the Constitution.”35 And where it is not, a municipal voter is entitled to allege constitutional infringement, including an infringement of s. 2(b) based on the denial of her right to cast a vote that can result in effective representation. 

29 Ibid at para. 58. 

30 De Jong v. The Attorney General of Ontario, (2007) 88 O.R. (3d) 335 (S.C.J.) 

31 Ibid at para. 25. Also see Baier, supra, note 28, at para. 57. 

32 Haig, supra, note 24. 

33 Ibid at para 84. 

34 City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A, s. 135(2) and Municipal Elections Act, 1996, S.O. 1996, c. 32, s. 17(2). 

35 Haig, supra, note 24, at para. 84. 

 

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[51] A finding that Bill 5 has infringed the municipal voter’s freedom of expression by abridging her right to cast a vote that can result in effective representation does not constitutionalize a third level of government. Nor does it constitutionalize a right to vote at the municipal level. The finding of Charter infringement flows from the application of the Supreme Court’s caution in Haig36 to the facts of this case – once provided, a right to vote in a municipal must comply with the Charter, and in particular s. 2(b). 

[52] This very approach was taken by the Court of Appeal in the “mega-city” amalgamation case.37 The amalgamation legislation was challenged on the ground that the resulting voter/councillor ratios were too high and denied meaningful access to one’s elected representative. The applicants’ challenge was based in part on s. 2(b) of the Charter. The Court of Appeal noted that it was “mindful”38 of the caution in Haig39 and proceeded to consider the s. 2(b) argument. The Court of Appeal found no breach of s. 2(b) because in that case there was no suggestion of “any curtailment of the right to vote” and no “evidence” that the size of the electoral districts post-amalgamation infringed the concept of effective representation.40 

[53] Here, however, the applicants before this court allege a clear curtailment of the right to vote and have filed extensive evidence about effective representation. I refer, of course, to the findings and conclusions of the Toronto Ward Boundary Review.

[54] The TWBR began in 2013 and concluded in 2017. Over the course of the almost four-year review, the TWBR conducted research, held public hearings, and consulted widely. The TWBR considered the “effective representation” requirement and the ward size that would best accomplish this objective. The option of reducing and redesigning the number of wards to mirror the 25 Federal Election Districts was squarely addressed and rejected by the TWBR. City Council’s decision in 2017 to increase the number of wards from 44 to 47 was directly based on the findings and conclusions of the TWBR, 

 

36 Ibid.
37 East York, supra, note 5.
38 Ibid at para. 2.
39 Haig, supra, note 24, at para. 84.
40 East York, supra, note 5. at paras. 4 and 8. 

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which in turn were affirmed on appeal to the Ontario Municipal Board and the Divisional Court.41 

[55] Put simply, the 25 FEDs option was considered by the TWBR and rejected because, at the current 61,000 average ward size,42 city councillors were already having difficulty providing effective representation. 

[56] Local government is the level of government that is closest to its residents. It is the level of government that most affects them on a daily basis. City councillors receive and respond to literally thousands of individual complaints on an annual basis across a wide range of topics - from public transit, high rise developments and policing to neighbourhood zoning issues, building permits and speed bumps. 

[57] Recall what the Supreme Court said in Saskatchewan Reference about how effective representation includes “the right to bring one's grievances and concerns to the attention of one's government representative.”43 This right must obviously be a meaningful right. This is particularly relevant in the context of the councillor’s role in a mega-city like Toronto. 

[58] The evidence before this court supports the conclusion that if the 25 FEDs option was adopted, City councillors would not have the capacity to respond in a timely fashion to the “grievances and concerns” of their constituents. Professor Davidson, who filed an affidavit in this proceeding, and also participated in the TWBR as a consultant, provided the following expert evidence: 

It is the unique role of municipal councillors that distinguishes municipal wards from provincial and federal ridings. Boundaries that create electoral districts of 110,000 may be appropriate for higher orders of government, but because councillors have a more involved legislative role, interact more intimately with their constituents and are more involved in resolving local issues, municipal wards of such a large size would impede individual councillor’s capacity to represent their constituents. 

41 With the exception of a minor change in one ward boundary. Leave to appeal the decision of the OMB, (now known as the Local Planning Appeal Tribunal) in Di Ciano v Toronto (City), 2017 CanLII 85757 (ON LPAT), was denied by the Divisional Court: Natale v City of Toronto, 2018 ONSC 1475. 

42 The average ward size in other Ontario cities is 32,600. 43 Saskatchewan Reference, supra, note 23, at para. 49. 

 

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It is my professional opinion that the unique role of councillors, as well as the public feedback received by the TWBR, and comparison with ward-size in other municipalities, demonstrates that a ward size of approximately 61,000 people provides councillors with capacity to provide their constituents with effective representation and that ward sizes of approximately 110,000 do not. 

[59] On the basis of the evidence before me, I find that the Impugned Provisions (that impose a 25-ward structure with an average population size of 111,000) infringe the municipal voter’s right under s. 2(b) of the Charter to cast a vote that can result in meaningful and effective representation. Once the Province has provided for a right to vote in a municipal election, that right must comply with the Charter. 

[60] In sum, I have found two distinct breaches of s. 2(b) – the first, that the Impugned Provisions substantially interfered with the candidate’s right to freedom of expression when it changed the City’s electoral districts in the middle of the election campaign; the second, that the Impugned Provisions substantially interfered with the voter’s right to freedom of expression when it doubled the ward population size from a 61,000 average to a 111,000 average, effectively denying the voter’s right to cast a vote that can result in effective representation. 

[61] I further find, for the reasons that follow, that neither of these breaches can be justified or “saved” under s. 1 of the Charter. 

Breaches of s. 2(b) not saved under s. 1 

[62] Section 1 of the Charter provides that the rights and freedoms guaranteed therein are subject to “such reasonable limits ... as can be demonstrably justified in a free and democratic society.” 

[63] The analytic approach that a court must take under s. 1 has been repeated and refined in numerous Supreme Court decisions since it was first set out in Oakes.44 Here is the prevailing articulation: 

[T]he Court must first ask whether the objective the statutory restrictions seek to promote responds to pressing and substantial concerns in a democratic society, and then determine whether the means chosen by the government are proportional to that objective. The proportionality test involves three steps: the restrictive measures chosen must be rationally connected to the objective, they must constitute a minimal impairment of 

44 R. v. Oakes, [1986] 1 S.C.R. 103. 

 

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the violated right or freedom and there must be proportionality both between the objective and the deleterious effects of the statutory restrictions and between the deleterious and salutary effects of those restrictions.45 

[64] The onus of justification under s. 1 is on the government. The standard of proof is the civil standard, namely proof on a balance of probabilities.46 Normally, the defending government files extensive evidence attempting to provide a justification for the breach under s. 1 of the Charter. Here, either because of time constraints or because there was little in the way of supporting evidence, the Province only filed one news release and some excerpts from Hansard setting out what was said by the Premier and others when Bill 5 was debated in the legislature. 

[65] The news release that was issued by the Premier's office on July 27, 2018 provided two rationales for Bill 5, improved efficiency and overall cost savings. The Premier observed that Toronto City Council "has become increasingly dysfunctional and inefficient through a combination of entrenched incumbency and established special interests" and that Bill 5 would create an effective municipal government that saves taxpayers money. 

[66] On August 2, 2018 at the second reading of Bill 5, the Minister of Municipal Affairs and Housing set out three objectives for the legislation: 

First, they [councillors in support of a 25-ward model] agree that a smaller council will lead to better decision-making at Toronto city hall, which would benefit Torontonians as a whole. They gave an example of the current 44-member council having 10-hour debates on issues that would end with the vast majority of councillors voting the same as they would have at the beginning of the debate. ... 

Second, they point out that it will save money ... 

Third, it would result in a fair vote for residents, which was the very reason Toronto itself undertook a review of its ward boundaries. The Toronto councillors I referred to earlier reminded everyone that the Supreme Court of Canada said that voter parity is a prime condition of effective representation. They gave examples of the current ward system, where there are more than 80,000 residents in one ward and 35,000 in another. They acknowledge that this voter disparity is the result of self- 

45 Libman, supra, note 10, at para. 38. 46 Ibid at para. 39. 

 

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interest, and that the federal and provincial electoral district process is better because it is an independent process which should apply to Toronto as well. ... The wards we are proposing are arrived at through an independent process. 

[67] It is important to note that, in the debate that followed, the Premier and the MPPs who spoke in support focused on two rationales for Bill 5: improved efficiency and cost savings, and did not refer to voter parity. The Premier added some anecdotal evidence from his days as a City councillor: 

I can tell you that I was there numerous times for a 10-hour debate on getting Mrs. Jones’ cat out of the tree. We would sit there and debate about anything for 10 hours. After 10 hours and thousands of pieces of paper going around, nothing got done. Nothing got done. And guess what. At the end of 10 hours, we all agreed to go get Mrs. Jones’s cat out of the tree. That’s a waste of time ... That is why it is time to reduce the size and cost of municipal government. 

[68] During the debate on second reading, the MPPs who spoke in support of Bill 5 focused on two objectives – improved efficiency and saving taxpayers money. Other than the brief reference by the Minister (in the excerpt set out above) nothing more was said about voter parity. The Province has indicated to the court that it does not rely on the costs saving objective for the s. 1 analysis. This leaves two objectives: improved efficiency (“better decision-making”, a “more streamlined” City Council) and voter parity (barely mentioned). 

[69] The Supreme Court noted in Health Services47 that it can be useful in the context of the s. 1 analysis to ask whether the government considered other options or engaged in consultation with the affected parties before enacting the challenged legislation: 

Legislators are not bound to consult with affected parties before passing legislation. On the other hand, it may be useful to consider, in the course of the s. 1 justification analysis, whether the government considered other options or engaged in consultation with the affected parties, in choosing to adopt its preferred approach. The Court has looked at pre- legislative considerations in the past in the context of minimal impairment. This is simply evidence going to whether other options, in a range of possible options, were explored.48 

47 Health Services and Support Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27. 48 Ibid at para. 157. 

 

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[70] Here, there is no evidence that any other options or approaches were considered or that any consultation ever took place. It appears that Bill 5 was hurriedly enacted to take effect in the middle of the City’s election without much thought at all, more out of pique than principle. 

[71] In any event, the constitutional problem here is two-fold: (i) there is no evidence (other than anecdotal evidence) that a 47-seat City Council is in fact “dysfunctional” or that more effective representation can be achieved by moving from a 47-ward to a 25- ward structure; and (ii) even if there was such evidence, there is no evidence of any urgency that required Bill 5 to take effect in the middle of the City’s election. 

[72] In my view, the Province’s justification of the Impugned Provisions in Bill 5 fails at the first step of the s. 1 analysis. There is simply no evidence that the two objectives in question were so pressing and substantial that Bill 5 had to take effect in the middle of the City’s election. 

[73] The Supreme Court has stated time and again that “preserving the integrity of the election process is a pressing and substantial concern in a free and democratic society.”49 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. 

[74] Even if the Province could establish that the two rationales that were provided to explain Bill 5 were so pressing and substantial as to justify its enactment in the middle of the City’s election, the Province could not establish proportionality, and in particular minimal impairment. As the Supreme Court noted in RJR-MacDonald,50 [I]f the government fails to explain why a significantly less intrusive and equally effective measure was not chosen, the law may fail.”51 

[75] Dealing with the first objective, improved efficiency in City Council debates, the Province has not shown why a significantly less intrusive and equally effective measure was not chosen, such for example, imposing time limits on debate, or more to the point, delaying the coming into force of the City Council restructuring law until after the City’s election. 

49 Figueroa, supra, note 18, at para. 72.
50 RJR-MacDonald Inc. v Canada (Attorney General), [1995] 3 S.C.R. 199. 51 Ibidat para. 160. 

 

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[76] Dealing with the second objective, voter parity, and giving the Minister the benefit of the doubt that he understood that the primary concern is not voter parity but effective representation, there is no evidence of minimal impairment. The Province’s rationale for moving to a 25-ward structure had been carefully considered and rejected by the TWBR and by City Council just over a year ago. If there was a concern about the large size of some of the City’s wards (by my count, six wards had populations ranging from 70,000 to 97,000) why not deal with these six wards specifically? Why impose a solution (increasing all ward sizes to 111,000) that is far worse, in terms of achieving effective representation, than the original problem? And, again, why do so in the middle of the City’s election? 

[77] Crickets. 

[78] I am therefore obliged to find on the evidence before me that the breaches of s. 2(b) of the Charter as found above cannot be demonstrably justified in a free and democratic society and cannot be saved as reasonable limits under s. 1. 

Is it too late to return to the 47-ward structure? 

[79] The Province’s final submission is that it’s too late to return to the 47-ward structure. The Province points to the City Clerk’s candid admission at the August 20, 2018 council meeting that she is not “confident” that the City could now return to the 47- ward structure. 

[80] The City Clerk may not feel confident about a 47-ward election but she is not saying that the hurdles are insurmountable. In any event, the City itself is asking explicitly for a return to the 47-ward structure and it is entitled to do so. I must assume that the City has considered the attendant logistical challenges and has concluded that an October 22 election based on the 47-ward structure can indeed be achieved in the short time that remains. 

Conclusions 

[81] I find that the Province’s enactment of Bill 5 in the middle of the City’s election substantially interfered with the municipal candidate’s freedom of expression that is guaranteed under s. 2(b) of the Charter of Rights. 

[82] I find that the reduction from 47 to 25 in the number of City wards and the corresponding increase in ward-size population from an average of about 61,000 to 111, 000 substantially interfered with the municipal voter’s freedom of expression under s. 2(b) of the Charter of Rights, and in particular her right to cast a vote that can result in effective representation. 

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[83] I further find on the evidence filed by the parties that these breaches of s. 2(b) cannot be demonstrably justified in a free and democratic society and cannot be saved as reasonable limits under s. 1 of the Charter of Rights. 

Disposition 

[84] The applications filed by the City of Toronto, Rocco Achampong, Chris Moise, Ish Aderonmu and Prabha Khosla (on her own behalf and on behalf of Women Win TO) asking this Court to set aside the Impugned Provisions in Bill 5 that purport to reduce the number of wards from 47 to 25 are granted. 

[85] The Impugned Provisions have no force and effect and are set aside immediately. 

[86] It follows from this decision that the City’s election on October 22, 2018 shall proceed as scheduled but on the basis of 47 wards and not 25 wards. If the provincial government wishes to enact another Bill 5-type law at some future date to affect future City elections, it may certainly attempt to do so. As things now stand - and until a constitutionally valid provincial law says otherwise - the City has 47 wards. 

[87] I shall remain seized of this matter to fashion the appropriate draft Order, including any related remedies being sought by the Toronto District School Board with regard to TDSB school board elections and recently enacted provincial regulations. 

[88] If the parties cannot agree on costs, they may forward brief submissions to my attention. The applicants shall file their costs submissions within 21 days and the Province within 21 days thereafter. 

[89] I am very much obliged to all counsel for their co-operation and assistance. 

(Signed) Justice Belobaba Justice Edward P. Belobaba 

 

Date: September 10, 2018 

 

Tomorrow (Monday 10 September 2018) Mr Justice Belobaba is expected to rule on whether Doug Ford’s Better Local Government Act – cutting the number of Toronto City Councillors to 25 - will be struck down or be allowed to stand. (The Act is also known as Bill 5.)

Mr Justice Belobaba

He is not expected to rule on the cancellation of the direct elections for Regional Chairs in York, Peel and Niagara and in the District of Muskoka. 

I first contacted my MPP, Deputy PC Leader Christine Elliott, about her views on the cancellation of the direct elections for Regional Chairs in late July 2018 but despite three emails and a visit to her constituency office I have heard nothing. My next step is to request a face to face meeting.

Ten days ago Mr Justice Belobaba heard from a string of applicants asking the Court to intervene. I was there to listen and learn.

This email address is being protected from spambots. You need JavaScript enabled to view it.

____________________________________

It is Friday 31 August 2018 and I am in Toronto sitting in the biggest Courtroom in Ontario, Courtroom 6, 361 University Avenue. It is packed. The Court is absolutely infested with lawyers - in their black robes and white legal collars in front of me and in their business suits all around me. Indeed, I am sitting next to one from the City of Toronto and get chatting to him. He says: 

“I am not answering any questions.”

I say

“I am not going to ask you any.”

But I do anyway. We rise as the Judge enters. Now the Court Usher cries:

“Long live the Queen! Please be seated.”

Mr Justice Belobaba has a mountain of work on his plate and he tells us things may slip and his ruling may be handed down on Tuesday 11 September. He says he needs two weekends and a working week to get through all the material. The deadline for nominations for Toronto City Councillors is 14 September.

Direct Elections for Regional Chair

The Judge is focussing solely on the Toronto election. He tells us he intends put to one side for the moment the two other pressing issues: scrapping the direct elections for Regional Chairs in York, Peel and Niagara and in the District of Muskoka and the planned elections for school board trustees in Toronto. 

He identifies and greets Counsel. He tells them he has read 80% of all the submissions which lie out of view, in crates, by his feet. He says he needs their help to get to the core issues. He says: 

“I am not too sure which way I should decide and that’s a good thing.”

But he lets us into his thinking. The Act may have implications for Charter Rights, for freedom of expression. He also wonders aloud how many people a councillor can effectively represent. These and related issues are the ones he wants to explore.

Now, in turns, the lawyers are on their feet addressing the judge but no-one else can hear what they are saying. The sole microphone is on a lectern which seems to run on wheels between the first six rows of seats reserved for Counsel.

The Judge has a request for the Premier. If the Province is going to save $25m by cutting Toronto City Council by half he wants $1m to come to the Courts so they can buy more microphones! I am warming to this Judge and his easy humour.

Now Diana Dimmer, representing the City of Toronto, is on her feet. She tells us the actions of the Province are contrary to democratic principles and Charter Rights. She says there is no precedent for a Government to interfere “mid-stream” in an election.

Ford supported boundary review. 

The ways things were. The madness exposed in Robyn Doolittle's Crazy Town.

She tells the Judge the City had powers to deal with Ward boundaries and composition and these have now been taken away by the Act. She says the City commissioned a Ward boundary review in 2013 from independent consultants and the recommendations were being implemented – until Bill 5 threw a spanner in the works (my words). She says Doug Ford as a councillor supported the review. She says the key guiding principle behind the review is “effective representation”. The Province is just focussing on one factor – parity – to the exclusion of all others. Now she is taking us to the relevant case law before pointing out the obvious – that absolute voter parity is impossible. Now we are hearing about projected population growth and how that could justify a departure from strict parity. Ours, she says, is a representative democracy.

Now the Judge is talking about people’s right to bring grievances to their representatives. Is it possible for councillors representing more than 100,000 people to deal adequately with speed bumps, manhole covers and the multitude of other matters local councillors have to deal with? He says he wants Counsel for the Province to help him understand its thinking.

Now Ms Dimmer is telling us the Province did not consider the role of the councillor at any stage. She quotes Doug Ford who believes good government can be delivered by 7-9 people. Anything more than 20 and nothing gets done. So, even by the Premier’s own criteria, a Council of 25 will not get anything done. Now she is quoting the Ontario Municipal Board and sums up:

“If effective representation is the goal then 47 councillors reflects that goal.”

There is not a single municipality in Ontario where wards are based on Provincial Parliamentary boundaries – except Toronto. Now Mr Glen Chu, Counsel for the City of Toronto, is on his feet.

The Judge tells him the Province can do what the heck they like providing they don’t breach the Charter of Rights and Freedoms. No?

Now the lawyers are diving deep into the legal undergrowth. I hear about BC v Imperial Tobacco and the Christie case. They are now talking about the principles of the unwritten constitution and the rule of law. “State actors” follow the rule of law.

Can the Courts strike down Primary Law?

The Judge asks if unwritten constitutional principles can set aside primary law – an Act of Parliament, not simply secondary legislation and regulations made by Ministers. The Judge is clearly concerned about the judiciary overreaching itself and striking down primary law.

The Judge reminds us that Queen’s Park is democratically elected.

“If all you have going for you is unwritten constitutional principles… it’s not enough.”

Now I learn from the Carter v Saskatchewan case that the arrangements for voting must be compliant with Charter rights on “effective representation”. Otherwise the Province could legislate for a two ward system for Toronto. Clearly, this would be absurd.

Now the Judge is focussing on the Province’s factum (simply a statement of the facts of the case). He quotes the Province’s view that reverting back to a 47 Ward election at this point is impossible. He says the City Clerk believes “it is simply not feasible”. The election will be controverted.

Ms Dimmer insists a 47 Ward election can be run.

Now Howard Goldblatt is on his feet. He is representing Chris Moise and two other applicants challenging the Province. He is looking at the application of Charter Rights and how Ford’s Bill impacts on these.

The Judge says:

“This is where the rubber hits the road.”

Now I am learning about the Harper case (2004) and Figorola (2003) and others and how these cases show Charter rights are mutually complimentary. Goldblatt tells the Judge that Bill 5 “trounces” on meaningful representation, racialized minorities, the LGBQ community and so on.

Whichever way the Judge’s decision goes there will inevitably be an appeal from the “losing” side. Given the telescoped timetable I am not sure where this leaves us.

Now Goldblatt is quoting from an “unofficial” transcript of the City Council meeting on 20 August. His clerks and law students have been burning the midnight oil, transcribing everything that was said. Phew! 

He quotes the City Clerk telling councillors that she cannot conduct two different elections (47 Wards and 25 Wards) at the same time.  

Elections are about rules

Goldblatt asks: What is at stake? And then answers his own question. It is about the right to participate in elections. And elections are about rules. The Election campaign started on 1 May 2018 and registration closed on 27 July 2018. Candidates have been campaigning, exercising their freedom of speech. But there is a complementary freedom – to receive those expressions. People had a right to hear about the candidates’ election platforms based on the 47 Ward configuration.  

Ford taking a bow in the legislature after being accused of bullying

The Judge nods. He says Bill 5 came down like a hammer in the middle of the election.

Now Goldblatt is spelling out the consequences of Bill 5 for candidates. He says the candidates who have “a right to expressive activity” which Bill 5 has “rendered moot”. Candidates have got to start all over again. People who have donated money to candidates may have reached their limit under legislation and candidates “can’t go back to the well” and ask for more cash. Hmmm. This hadn’t occurred to me.

Now one of Goldblatt’s colleagues rises to amplify some of the points made earlier about freedom of association. She talks about the “balance of power” and how minorities of every hue (and also women) can assert themselves. To do this they need to come together during an election and Bill 5 “impacted” on this. 

She says Bill 5 disadvantaged candidates and community groups with limited financial resources; it disadvantaged groups by changing ward boundaries and truncating the time to associate and campaign. And it also strengthens the position of incumbents.

The Province says this is all nonsense and that all candidates have been equally impacted by Bill 5.

Now the lawyers are galloping along, telling us that what has happened is unprecedented in Common Law jurisdictions – changing the rules of the game two thirds of the way through the election campaign. There are precedents for the Courts intervening when the legislature goes too far. Now we are on to Quebec secession and what constitutes a “majority”. 

The Judge says Parliament can pass whatever laws it wants – even if they are draconian. He says this to provoke a reaction from the lawyers in front of him:

“They can be dumb draconian laws.”

Not so. In the absence of “pressing and substantial reasons” such as insurrection the Judge is told:

“Once you start an election process the Government has got to stay out of the way. There has to be clear unchanging rules for the election period. At this stage it is a matter of fairness.”

Now the lawyer representing Toronto School Boards is on his feet. He says the school board elections flow from the Education Act and regulations made under it and these remain untouched. The Judge says he cannot stray from the main point of issue and hopes the Government and the School Boards can sit down and sort things out.

Procedural Fairness "thrown in the garbage"

Now another lawyer for the applicants is on his feet. He needs no microphone. His booming voice tells us candidates have been disadvantaged by Bill 5 and procedural fairness has been thrown in the garbage. Bill 5 is inconsistent with section 1 of the City of Toronto Act which has not been repealed:

The City of Toronto exists for the purpose of providing good government with respect to matters within its jurisdiction, and the city council is a democratically elected government which is responsible and accountable.

The Government repealed sections of the City of Toronto Act but not that one. He says Toronto has been singled out for special treatment “based on no evidence”. There has been no parity of treatment with other municipalities. 

Now Robin Kumar Basu is on his feet, representing the Attorney General of Ontario (which sounds a lot weightier than Caroline Mulroney).

Basu, short in stature, is another lawyer with a voice that carries, loudly reminding us that the City Clerk has told us she can’t revert back to a 47 Ward election without unacceptable risks. He says the case is only about the 2018 election. There is time for the Province – should it wish – to look again at the format for future elections. He says the Wards had “gotten out of whack” in terms of parity.

He compares Willowdale Ward with 97,000 voters and Danforth with 45,000. Even with the 47 Ward model there is a 38% variance. (This is because of anticipated future growth which is built into the model.) He says the new Wards will be based on Federal Riding boundaries and these are reviewed every ten years.

Basu is now getting a bit hyper, diving into the statistics and doing calculations out loud as if to prove he can do mental arithmetic. He is testing the patience of the Judge who tells us he knows the facts and wants Mr Basu quickly to get on to the law. Squash!

Basu hands over to a colleague who tells us the legislature is sovereign and it can do what it likes; section 3 of the Charter which gives us the right to vote in Federal and Provincial elections does not apply to municipalities and section 2b of the Charter cannot be used to “constitutionalise” municipalities to encompass the right to vote.

The Judge says Queen’s Park is sovereign within its own bailiwick 

“providing it doesn’t breach Charter rights”.

Now we are submerged in case law. I learn there is no constitutionally entrenched right to vote in a referendum. The Province says that if there is a guaranteed right to vote for municipalities we could be setting up a third order of Government.

All this sounds like a lot of old baloney to me but the gowns and collars up front can make a silk purse out of a sow’s ear.

Municipalities have no constitutional status

Now we are hearing about the Carter case and Amalgamation. Basu is now back on his feet and going on about the Charlottetown process. He switches gear and tells us the Government can basically do what it likes and there will always be winners and losers. That’s just the way it is. Municipalities do not have constitutional status. (The flip side is that since 1867 municipal voters have enjoyed democratic rights.)

Now he is talking about marijuana and where it should be sold. If it is sold on-line then people who campaigned to keep stores out of their neighbourhoods would have wasted countless hours. It is too bad people spent time campaigning for an election that isn’t going to happen but that’s life. I am not convinced by the example but Basu clearly believes he has hit the bullseye. 

Now Basu challenges the Judge on his (the Judge’s) view that the workload of councillors is heavier (in terms of caseload) than MPs or MPPs. No says Basu. MPs deal with immigration for example which is very time-consuming. And MPPs have education, social welfare and provincial roads – to name a few – on their plates.

Now the applicants’ lawyers are invited to challenge the points made by Basu.

Glen Kwok Chu for the City of Toronto is on his feet zeroing in on Bill 5 and Charter rights -what the Judge has repeatedly told us he is focussed on. We shouldn’t be talking about Parliamentary but constitutional supremacy. And the Charter is a check on what Governments can do.

“Charter rights overlap and inform Charter analysis.”

Now a new lawyer rises to speak, reminding us that the Government’s rational for Bill 5 was to save money. He says he objects to the notion that parity was the “animating objective”. There wasn’t a mention of cutting the City Council by half in the election campaign.

 He says that the Attorney General is of course free to argue that a smaller Toronto City Council would be more effective but there is no evidence that this is the case. And if the Council is dysfunctional then perhaps there are other reasons beyond size. 

What is dysfunctional?  

Now the Judge is asking what the Provincial Government could have done short of Bill 5 to improve the efficiency of Toronto City Council. Mr Chu for the City tells him there is nothing before the Court on what is meant by dysfunctional. Now they are talking about Doug Ford bemoaning the fact that the Council spent ten hours discussing Mrs Jones and her cat in the tree.

Chu returns to the question of what was said by the City Clerk on election readiness. He says Basu quoted her views expressed before the Council meeting on 20 August. 

“Three days later (on 20 August) the clerk took a far more equivocal attitude.”

Now Mr Rocco Achampong is on his feet. This is the man who set the whole ball rolling as the first applicant to challenge the Government in Court. He was later joined by the City of Toronto and others. He was a candidate for City Council as well as being a practising lawyer. 

It is now around 6pm on the Friday of the long weekend - way past the Court’s usual bed time. The Judge tells Achampong to take him straight to the legal issues.

The Charter restricts what Governments can and cannot do. For example, Parliament cannot sit for longer than five years. He says the Municipal Elections Act and “other Acts” obliges the Clerk to give “reasonable notice” of elections and the arrangements to be followed. He gives examples of people who gave up the jobs to run for office. He himself took time out from his law practice.

He challenges Basu’s view that the Province can change the rules as it pleases. No. 

He says the rules should be “stable, predictable and ordered.”

Voter parity was never the motivation.

The Judge is now wrapping things up. He asks if there is anything he may have missed. Anything he should read/re-read?

A few lawyers rise to briefly regurgitate what they said earlier and then it’s all over. We all stand and Mr Justice Belobaba  departs for a stiff drink (I imagine) before sealing himself in his law library for ten days.

I see Mario Racco is in Court and I say hello. Racco was running for York Regional Chair before Ford pulled the rug from under his feet.

I ask him what is going to happen now. 

He says Markham’s Mayor, Frank Scarpitti, may run for York Regional Chair if he thinks he has a chance of winning. (After all, there are only twenty “electors” to canvass.)

And if he wins? I suppose that means a Mayoral vacancy in Markham and a very expensive election.

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