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Province had no duty to consult before cutting Toronto council size, lawyers argue

Ontario’s move to cut Toronto City Council almost in half during an election campaign doesn’t violate the Constitution and Queen’s Park did not have to consult anyone before it acted, provincial government lawyers will argue on Friday.

An Ontario Superior Court judge will hear arguments from the City of Toronto and a number of council candidates who are challenging Premier Doug Ford’s Better Local Government Act, which reduces the number of city councillors to 25 from 47.

In written submissions filed in court on Wednesday, the Ontario government dismisses the city’s argument that redrawing the boundaries in the middle of an election campaign violates “unwritten constitutional principles” of democracy and the rule of law or that it violates the voting rights guaranteed in the Charter of Rights and Freedoms.

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Those rights to vote and run for office “do not apply to municipal elections,” Ontario’s lawyers say, adding that nothing Queen’s Park has done violates the Charter right to free expression, either, as the city argues, because no candidates are prohibited from running or expressing themselves.

The provincial government also says the legislature doesn’t have to consult anyone before enacting legislation, that courts have no say over the legislature’s procedures and that the Constitution is clear that what provinces do with their municipalities is up to them. Any court restriction on using that power, such as during an election period, “would undermine parliamentary supremacy," the province argues.

“The supremacy of the provincial legislature is itself an expression of the principle of democracy and the rule of law,” the government’s submission reads.

The city argues the province agreed to consult it on major policy changes in pledges contained in the City of Toronto Act and in a co-operation agreement signed by both governments. But Ontario says neither document obligates Queen’s Park to do anything of the sort. The legislature cannot be bound by previous legislation or agreements, they say. And that the co-operation deal with Toronto “provides … that failure to abide by any of its terms gives rise to no legal remedy."

Plus, Ontario argues, Toronto’s city clerk has warned she is not confident she could revert to a 47-ward vote, having scrambled to put the 25-ward system in place for Oct. 22.

The government’s submission also points out that for the 2018 election, the 25 wards, based on the federal and provincial ridings, provide much better voter parity – in terms of minimizing the different number of voters for each ward – than the proposed 47-ward system, which was designed to allow the fast-growing city to grow into parity by 2026.

Allowing the 2018 election to go ahead with 47 wards, only to cut council to 25 wards after, would have been more disruptive, the government argues.

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In its written arguments, the City of Toronto calls the province’s move arbitrary and discriminatory and argues it could revert to a 47-ward election with some amendments made to election laws. “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," it says.

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