Toronto’s city clerk is warning that her ability to administer a fair municipal election for Oct. 22 could be in jeopardy because of uncertainty resulting from the escalating battle between the province and Canada’s largest city over cutting council almost in half.
And at the same emergency council meeting on Thursday, local politicians voted to ask the federal government to employ a little-used constitutional power that could allow Ottawa to quash the effort to downsize council. That power, however, has not been used since 1943.
The councillors also instructed city lawyers to exhaust every legal avenue in council’s battle against the Premier’s move to reduce the number of council seats to 25 from 47. They also vowed to fight Premier Doug Ford’s unprecedented use of the notwithstanding clause to override a court ruling that declared his legislation, brought forward in the middle of an election campaign, unconstitutional.
Toronto’s fight with Ontario has higher stakes than the mere size of a municipal council. The city encompasses more citizens than most provinces, and its financial sector is an engine for the broader national economy. That political battle has quickly escalated to the constitutional front, with the city’s request raising the question of who will ultimately wield authority over the proposal to reshape city council: the province, the courts, or even the federal government.
Prime Minister Justin Trudeau, speaking in Saskatchewan as the Toronto meeting took place, stressed he would not change his position on the Ford government’s decision to invoke the notwithstanding clause.
“I’m disappointed that the provincial government chose to take this decision to override people’s rights and freedoms but at the same time, I’m not going to weigh in on the actual debate over the size of the municipal governments in Ontario, in Toronto,” he said. “I don’t think that’s a role that the federal government needs to take on.”
City Councillor Joe Mihevc said he hoped that the Trudeau government’s many Toronto Liberal MPs could be persuaded to support overriding Mr. Ford: “I would say, at this time, Mr. Prime Minister, Toronto needs you … We need you to enforce that principle in the Charter of Rights and Freedoms that we are all created equal under the law.”
The battle over Mr. Ford’s plan has left city officials reeling as they try to prepare ballots, voting cards and polling stations for the Oct. 22 vote, which remains surrounded with confusion.
City clerk Ulli Watkiss told councillors on Thursday that all the uncertainty over the legislation has her at a “tipping point” on her ability to properly administer the vote, however many wards the city ends up with. She told council she has retained her own lawyer to seek advice on, among other questions, whether her powers to run the election include the ability to postpone it.
“I am frankly at that point. … Every hour that goes by, every day that goes by, creates greater uncertainty and raises in me a huge concern over the proper conduct of this election,” Ms. Watkiss said. “I have to let council know that.”
The opposition parties in the Ontario Legislature have vowed to use procedural tools to delay the province’s bill as much as possible.
The NDP said Thursday that it will challenge the bill under rules that prevent legislators from introducing substantially the same bill twice in one session, and that bar the legislature from debating an item currently before the courts.
The legislature’s Speaker, Progressive Conservative Ted Arnott, will be called to rule on the matter, though it’s unclear how long it will take him to decide.
The Ford government, meanwhile, is seeking to make procedural changes that the NDP says aims to prevent opposition parties from delaying the passing of legislation.
NDP Leader Andrea Horwath noted that several provincial and federal Conservatives have spoken out against the notwithstanding clause.
“The only Conservatives defending the Premier’s decision are the ones who rely on him for their jobs,” she said. “How can the Premier be so certain that he is right when so many thoughtful Conservatives are telling him he is utterly and totally wrong?”
On Monday, an Ontario Superior Court judge ruled that Mr. Ford’s first legislation aimed at cutting Toronto’s council, passed Aug. 14 with the municipal election well under way, violated the Charter’s freedom-of-expression clause. The Premier responded hours later by announcing that he would invoke the Charter’s Section 33, the notwithstanding clause, for the first time in Ontario’s history. His new bill to cut council, introduced Wednesday, sparked protests inside and outside the legislature.
The original court battle against Mr. Ford’s first attempt at the legislation is set to go before the Ontario Court of Appeal on Tuesday. The Ontario government is seeking a stay of the lower-court ruling, pending the result of its appeal. If successful, Monday’s judicial order that reverted the city to a 47-ward election would be put on hold.
Many city councillors acknowledge their hopes of a court win were faint ones. The vote to fight on comes despite warnings in a two-page confidential legal briefing distributed to councillors and seen by The Globe and Mail that concludes the city has very “limited options” and that any legal challenge will be “very difficult.”
Councillors also voted to launch a separate constitutional challenge of Mr. Ford’s use of the notwithstanding clause. But such a challenge, making use of previous rulings that the clause cannot be used retroactively, may be difficult, the legal briefing reads, as the facts in the current case are “significantly different.”
In her confidential report, city solicitor Wendy Walberg is also skeptical of asking Ottawa to intervene and use its little-known power of “disallowance,” saying she has “no reason to believe” the federal government would dust off this section of the Constitution: “The powers ... have not been used in many decades.”
City Councillor Paula Fletcher called Mr. Ford’s suspension of the Charter, and his threat to do it again for other pieces of legislation, “chilling for democracy” and reminiscent of politics south of the border: “Many people have said to me on the doorstep, it’s very Trump-like. And that is what concerns me.”
A number of mostly suburban and right-leaning councillors support Mr. Ford’s move. City Councillor Stephen Holyday, from Mr. Ford’s political home base in the west-end suburb of Etobicoke, said he feared the legal battle will only hamper the clerk’s efforts to run the election: “The horse left the barn a long time ago when it was announced there would be a downsizing of council.”
Don Iveson, the mayor of Edmonton and the chairman of the Federation of Canadian Municipalities Big City Mayors' Caucus, issued a statement supporting Toronto’s “efforts to protect local democracy” and calling for provincial and federal governments to work more closely with cities.
With a report from The Canadian Press