David Butt is a Toronto-based criminal lawyer. For three years, he served as commission counsel to a judicial inquiry examining municipal governance in Toronto.
The Ford government’s announcement that they will reduce Toronto City Council from 44 to 25 members might be a good idea. It might, as the Premier claims, make Toronto’s government more efficient and effective. But, the proposal would substantially alter democracy in Canada’s largest city, and it was sprung on that city without consultation. For those reasons, divorced entirely from its merits, the proposal is a profound and troubling departure from democratic norms. So much so that it violates constitutional principles of democratic engagement, and should be challenged in court.
Provincial governments clearly have authority to legislate on municipal affairs. So why is this proposal, plausible on its face, and within the competence of a duly elected government, so deeply problematic?
The answer lies in the meaning of democracy in our constitution. Government action that offends the constitution can be and routinely is struck down by the courts. If the Ontario proposal offends the constitution’s conception of democracy, it is invalid.
Our constitution is part written, part unwritten. But democracy centrally animates both parts. In the written part we see, for example, in the very first section of the Charter of Rights and Freedoms, that we measure the scope of our fundamental rights and freedoms against what is justifiable in “a free and democratic society.” And in the unwritten part, for example, the governor-general can refuse royal assent to legislation passed by Parliament, but, by unwritten constitutional convention, must respect democracy by granting royal assent in all but the most egregious circumstances. In short, the constitution exists to preserve democracy, and democracy is the yardstick by which we measure the constitutionality of government action.
What does democracy mean in a constitutional sense? Constitutions are meant to last a long time, so they employ general terms, and are short on specific details. The meanings of those general terms evolve over time as judges apply them to new situations. At present, constitutional democracy means much more than just voting. The heart of constitutional democracy is meaningful engagement of those governed in decisions that affect them. Governments at every level across Canada recognize this. They solicit public input and monitor public reaction to their policies before, during and after implementation. Taking public input seriously is not just good politics. Courts have repeatedly ruled that sometimes – for example, in Indigenous affairs – the duty to consult is a constitutional imperative as well.
So, constitutional democracy requires real engagement with those governed. However, democratic engagement is impossible without mechanisms to carry it out. Reliable, well-established channels of meaningful input to legislators from constituents form the critical infrastructure of democracy. In a society in which change is rapid and multidimensional, an “X” on a ballot every few years is far from the ongoing engagement necessary for true democracy.
In Toronto, one crucial method of democratic engagement is the body of 44 councillors who convey input from their wards. The provincial government proposes to cut the complement of councillors almost in half, without consulting Torontonians. This is a double whammy for democratic engagement: none was undertaken before the announcement, and much less will be possible after. Toronto’s critical democratic infrastructure is being partially dismantled unilaterally.
This is not just another announcement. Changes to structures of democratic engagement have the broadest possible impact, because every subsequent legislative initiative is affected by the reconfigured process. This is not just democracy in action, this is changing democracy itself. If a government can truncate democracy without consultation, it can eliminate it without consultation. So the case for consulting those governed cannot be stronger or more serious.
Dictators the world over have routinely muzzled public input to pursue efficiency. Efficiency is not objectionable in itself. But broad consultation is crucial to maintain the right balance between the messiness of inclusive democracy, and efficient governance. Without meaningful consultation, a precedent is set justifying imperiously imposed and far-reaching structural change to key democratic institutions that stifles public input. Such a precedent would be foreboding not just for Toronto, but for Canadian democracy countrywide. That is an issue of constitutional proportions.
Democracy is the guiding principle animating our constitution, and the government of Ontario’s proposal to truncate democracy for three million souls without prior consultation is a dangerous blow to that guiding principle. Toronto should launch a court challenge against the proposal. Courts have recognized the duty to consult before, and will do so again. Independent judges, sworn to uphold the constitution, must rule on the provincial plan, because the vibrancy of Canadian democracy is at stake.