Ontario’s highest court has ruled in a split decision that Ontario Premier Doug Ford did not violate the Constitution when he moved to cut the number of Toronto city councillors in half with a municipal election campaign already under way.
The Ontario Court of Appeal’s decision overturns a lower-court ruling that Mr. Ford’s move last summer to reduce Toronto’s city council to 25 wards instead of a planned 47 violated the free-expression rights of both candidates and voters as guaranteed by the Charter of Rights and Freedoms.
In a 3-2 ruling issued on Thursday, the Appeal Court acknowledged the cut to council “disrupted” the municipal campaign. But it sided with Ontario’s arguments that the Constitution gives the province complete power over cities, even in the middle of a municipal campaign period.
The ruling notes that it was uncontested that the province remained free to alter Toronto’s ward boundaries as it saw fit the day right after an election, although doing so would also seem to affect the free expression of candidates and voters. The Charter cannot preserve the impact of free expression, the majority opinion reads.
“Expression is one thing. Its impact is another,” the ruling says.
In a dissenting opinion, Justice James MacPherson argues the collapsing of Toronto’s wards mid-election did interfere with the free expression of those running for council, calling it a “substantial attack on the centrepiece of democracy in an established order of Canadian government.”
The dissent, also endorsed by Justice Ian Nordheimer, argues governments should respect the Charter once they have set up a process to run a municipal election: “Free expression in this context would be meaningless if the terms of the election, as embodied in the legal framework, could be upended mid-stream."
The court was not asked to actually overturn the fall vote. It did not award legal costs to either side.
The city said its lawyers are reviewing the decision, and would report to council next month. Council voted in January to take the case to the Supreme Court of Canada if it lost at the Appeal Court.
In a statement, Toronto Mayor John Tory noted what he called the court’s “strong dissenting opinion.” He also pointed to council’s “clear direction” to take the case to the country’s top court.
“I have opposed and continue to oppose the provincial government’s actions on this matter – they were unfair, unnecessary and unprecedented,” Mr. Tory said. “As I have said many times, you don’t just change the rules of an election in the middle of an election.”
Jenessa Crognali, a spokeswoman for Ontario Attorney-General Doug Downey, said the provincial government welcomed the ruling, but would not comment further citing a possible appeal.
The surprise cut to council, just weeks after Mr. Ford took office, threw Toronto’s politics into turmoil. After an Ontario Superior Court ruling deemed his move unconstitutional last September, Mr. Ford lashed out at “appointed” judges and threatened to invoke the Constitution’s rarely used notwithstanding clause to get his way.
Last fall, the Appeal Court also sided with the Ontario government and granted its request to put that lower-court ruling on hold pending a final decision – allowing the October municipal election to go ahead with 25 wards.
The Premier, a former Toronto councillor when his late brother Rob Ford was mayor, had pledged the reductions would save Toronto $25-million over four years. But councillors have since hired more staff to deal with wards that almost doubled in size, erasing any significant savings.
Toronto City Councillor Joe Cressy said the legal relationship between the province and his city is an anachronism that does not reflect how populous and economically important cities have become. He called for Toronto to work toward a “city charter” with Ottawa that would grant it new powers.
“We continue to operate under the whim of a provincial government tune that can change any day, and that’s not a model for economic success nor livability,” Mr. Cressy said.
Ontario Opposition NDP Leader Andrea Horwath pointed to a bill she has proposed that would see the province pledge to consult the public and obtain municipal approval before redrawing municipal boundaries: “We cannot let Doug Ford, or any premier, trample over local democracy like this again.”
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