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The showdown between Ontario’s Premier and Canada’s biggest city is only a skirmish in a bigger war over municipal governments' legal rights

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Whether it's in Vancouver, Montreal or Toronto, city halls across Canada have learned a hard lesson from the Ontario government: The nation’s laws provide no right to democratic government at the municipal level, because cities and their leadership simply don’t exist as constitutional entities.iStockphoto

Doug Saunders is The Globe and Mail’s international-affairs columnist. His books include Arrival City and Maximum Canada.

The last time the people of Toronto were so thoroughly stripped of their illusions of security and self-government by a higher power, they were forced to flee across the Don River and blow up the Fort York ammunition dump. Unlike those events following the U.S. invasion of 1813, this week’s showdown with Ontario Premier Doug Ford has not killed or maimed anyone, although it has involved screaming, marching, denunciation, betrayal and citizens being dragged out of the provincial legislature in handcuffs.

It has also exposed, in a most dramatic way, a fundamental crisis in Canada’s big cities. The attempt by Mr. Ford’s Progressive Conservative government to slash the number of Toronto city councillors in half in the midst of a municipal election – and his unprecedented decision this week to invoke a constitutional clause to suspend the Charter of Rights and Freedoms in order to do so – may look to many Canadians like a momentary fit of pique and petty vengeance by one right-wing politician who became Premier against another who defeated him in a mayoral election.

More than that, it is the latest, and most dramatic, manifestation of a larger problem, one seen worldwide but especially in Canada, one that cuts across lines of party and geography, and grows more acute as this country becomes more urban: Our cities, as political and constitutional and democratic entities, do not exist.

The Ford crisis “underlines the profound problem of non-existent local democracy rights,” says Mariana Valverde, a University of Toronto sociologist and legal scholar who co-authored a 2006 Osgoode Hall Law School paper, with Ron Levi, which predicted that a then-new wave of provincial “city charters,” which supposedly gave greater fiscal powers to Canada’s big cities, would not actually provide any guarantee of independence or democratic rights, and that provinces could trammel the interests of cities on a whim.

In fact, as Torontonians learned this week, Canada’s Constitution and laws provide no right to democratic government at the municipal level, because cities, and municipal governments, simply don’t exist as constitutional entities or independent jurisdictions in Canada – they are mere creatures of the provinces. As Dr. Valverde says, “Canadians may think they have a right to elect their local government, but they don’t.”

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A protester is handcuffed by security guards in the public gallery of Ontario's legislature, where MPPs had returned to push through Premier Doug Ford's new bill to cut Toronto's city council in half on Sept. 12, 2018. It passed first reading.Chris Young/The Canadian Press

Municipal governments in most Western countries are simply corporations, registered with and fully under the control of national, state or provincial governments. Some of them (mainly in English-speaking countries) are able to finance themselves by levying property taxes, and occasionally municipal sales or income taxes and other fees. In many countries (and partly in Canada), they rely on block grants and transfers from higher levels of government.

This system was designed during an era when Canada and other countries were mainly rural and agrarian, and cities were an afterthought. Today, eight in 10 Canadians live in a city, making us leaders in an urbanization wave that’s still sweeping across the rest of the world. The largest cities are more influential and economically important than the provinces and states that contain them; in effect, the major provinces are held aloft financially and sometimes politically by their biggest cities.

This also means that provincial and sometimes federal governments, with increasing frequency, find themselves in political and economic conflict with their big cities. The Ford-Toronto showdown is just the latest in a continuing series of conflicts over urban rights:

  • Toronto only recently faced an unpleasant confrontation with Ontario’s erstwhile Liberal government, in which former premier Kathleen Wynne, for apparently electoral reasons, forbade Mayor John Tory’s attempt to finance a public-transit expansion by charging road tolls on the highways the city owns.
  • Vancouver’s attempts to expand its own public-transportation network using a 0.5-per-cent sales tax was similarly thwarted by then-premier Christy Clark’s government, which insisted, apparently with similar political goals in mind, that any transit plans be subject to a citywide referendum – and the referendum, in 2015, failed.
  • Montreal, which faced friction from the province in its efforts to expand into a larger self-financed metropolitan region, may find itself in the same transit deadlock as Toronto and Vancouver after October’s Quebec election. The party currently leading the polls, the conservative Coalition Avenir Québec, has vowed to cancel Montreal Mayor Valerie Plante’s popular plan to build a major new Metro line: “We have concluded it’s not the priority,” CAQ Leader François Legault told his party convention.
  • Vancouver’s attempts to deal with its overdose crisis with supervised drug-use sites has become a political football at the federal level over the past decade and a half, with Conservative governments attempting to shut the site down and defund it, and Liberals generally supporting it. 
  • Recently, both Toronto and Montreal have found themselves at odds with their provincial governments over refugees and border-crossers, with the cities declaring themselves “sanctuary cities,” their police required not to report anyone to federal immigration authorities – putting them at odds with provinces that have tougher stances on asylum-seekers.
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Toronto Mayor John Tory sits during an emergency meeting of city council where city officials discussed what to do about the province forcing through legislation to change their governing structure.Christopher Katsarov/The Globe and Mail

Behind all these conflicts is a larger problem: Today’s most significant government challenges – from immigration to drug policy to transportation and poverty and even Indigenous affairs – are all matters of national or provincial policy, but those challenges play out overwhelmingly on the municipal level, despite a complete lack of municipal political authority over many of these areas. Immigration, always a matter of national policy, takes place almost entirely in Canada’s three largest metropolitan areas, with the city administrations both reaping the benefits and dealing with the challenges of settling and integrating newcomers, without any direct control over numbers or requirements. The great majority of Canada’s First Nations, Inuit and Métis people (about six in 10) live in urban areas, even though Indigenous affairs are strictly national or band-council matters.

Canada is far from alone in this. Conflicts between national policies and their mainly municipal manifestation have come to a dramatic head in the United States, where President Donald Trump and his administration have attacked major cities – home to almost all immigrants in the United States – for applying sanctuary-city policies that shield and sometimes hide migrants from his increasingly harsh immigration enforcement. Similar confrontations between national immigration policies and the cities that must contend with those policies have been felt in the Netherlands, Britain, Italy and elsewhere. Even urban planning can be affected: In Vienna, a dispute played out for years over the city’s lively Turkish district, which the city wanted to promote as an attraction and the more conservative state government wanted to discourage visitors from seeing.

“There’s historically been this perception that municipal governments are policy takers, not policy-makers,” says Alison Smith, a University of Toronto political scientist whose work focuses on the interactions between multiple levels of government around such issues as homelessness.

“A lot of the policy problems being faced today aren’t resolvable by one level of government or even by many – when we’re looking at governance to solve some of Canada’s biggest problems, such as immigrant settlement, it requires the co-ordination of a whole lot of actors, including not just federal and municipal and provincial, but non-profit and private-sector and Indigenous. And we’re not there yet. We’re not good at that yet.”

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A crowd gathers outside Toronto's City Hall for the Save our Democracy and Rights event on Sept. 12, 2018, a protest against the Ford government's cuts to city council.Tijana Martin/The Canadian Press

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A giant Charter of Rights is rolled out for people to sign, addressed to Attorney-General Caroline Mulroney. The government invoked the Charter's Section 33, the notwithstanding clause, to justify its cuts, despite a judge's ruling that they were unconstitutional.Tijana Martin/The Canadian Press

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Winnie Gorgensen holds up a sign during the Sept. 12 rally. The following day, Toronto's city council held an emergency session where they voted to pursue legal action to stop the Ford government's cuts.Tijana Martin/The Canadian Press

The Ford-Toronto crisis, and the similar urban-provincial showdowns that proceeded it, have led a lot of people to propose a radical change in the way big cities are administered and recognized in Canada. One Toronto mayoral candidate, former chief planner Jennifer Keesmaat, has gone so far as to launch her campaign after making a “secession” proposal – that is, to turn the Greater Toronto Area into some sort of separate province or quasi-independent jurisdiction that reports to the federal government. It’s not an entirely new or radical proposal, having been endorsed or proposed, in some form, by former Toronto leaders Paul Godfrey, Mel Lastman and David Miller. But it would probably entail a constitutional amendment – one the provinces would never consider.

If Canada were to be created today from a blank slate, it’s likely that the three to five biggest cities would have some special constitutional status. That would not be a unique arrangement. In Germany, whose federal structure was created after the Second World War, the cities of Hamburg and Berlin have the status of states; so does Brussels in Belgium. This gives them a political and fiscal independence sometimes envied by other cities. In China, the cities that have been most adept at resisting President Xi Jinping’s increasingly authoritarian policies have been the handful of big ones that are legally full-scale provinces.

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Berlin has the status of a state under Germany's federal structure, as does the city of Hamburg.HANNIBAL HANSCHKE/Reuters

Then again, being directly beholden to the federal government sounds good mainly to cities whose governments are ideologically at odds with their provinces.

Canada’s cities, as provincial corporations without recognized democratic rights, do appear to have a lot less independence and self-governing ability than cities in other countries. A number of comparative studies over the past decade suggested that Canada’s cities are at the low end of the autonomy scale – notably compared to the United States, where cities have far greater immunity from state interference (unless they go bankrupt, which happens fairly often).

“Canada is one of the laggards in terms of what cities are able to do,” says Dr. Smith, who co-authored a study that found a very low level of autonomy in most Canadian cities (with Vancouver having somewhat more independence than most, and Saskatoon having even less).

There have been moves toward more autonomy – at least on paper, in the form of “charter city” movements, in which cities are granted new incorporation acts, or charters, by their provinces. These charters expand the ability to levy taxes, borrow money (within strict limits) and self-govern. In practice, however, several scholars have concluded that these charters aren’t worth much – their restrictions outnumber their liberating clauses, and in the end, as the Toronto showdown has demonstrated, a recalcitrant provincial government can still wreak a lot of havoc on a city it dislikes.

And a lot of informed observers say that autonomy, by itself, won’t solve the problems cities face.

“If we work from the premise that local autonomy and self-determination is always better, without any conditions or boundaries around it, then we end up looking a lot like the United States,” says Zack Taylor, a University of Western Ontario professor who is director of the Centre for Urban Policy and Local Governance. “And that produces a lot of inequities that I think we’re pretty glad we don’t have.”

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July 4 celebrations at the Arch in downtown St. Louis, Mo. The city is an extreme case of a fragmented U.S. city where there is no redistribution between poor municipalities and rich ones.David Carson/The Canadian Press

U.S. cities, which prize autonomy above all, are often fragmented into scores of separate municipal entities, each with its own property-tax system, police and school system, and in extreme cases such as Cleveland and St. Louis, Mo., have no redistribution between the very poor municipalities (which are often black) and the wealthy ones (which are mainly white).

Canada’s provinces, like national governments in places such as Britain, have often done cities favours by defragmenting them into larger amalgamated units, albeit often against their will. “It doesn’t have to be command and control at the expense of local autonomy,” Dr. Taylor says. “What provinces have done in their most enlightened moments is to create rules within which local autonomy takes place.”

The underlying paradox is that the most effective municipal government, in many cases, is the local office of the federal or provincial government – and that cities are often able to function most autonomously and effectively when these higher-level governments are well integrated into their urban machines.

“Our most pressing policy problems are found in cities,” Dr. Taylor says. “And probably the solutions are found in cities as well. So the question is, should we municipalize the problem? And I would rather suggest that we should formulate urban governance as multilevel governance – all levels of government are governing cities, and the test is how well they work together to do it, to leverage the different things that they’re good at.”

One of the many fundamental flaws in Canada’s constitution is that it does not recognize, empower or protect cities. Without that protection – and even probably with it, as scholars such as Dr. Taylor and Dr. Smith point out – it comes down to political relationships. At the moment, these hang on a knife’s edge in the biggest cities. But those cities, even if they may take a serious beating during four-year periods of political disharmony, ultimately provide their provincial and federal governments with the lion’s share of tax revenues, economic growth and voters. And if those higher governments fail to “municipalize” their policies effectively, or instead starve the cities of resources, then they’ll eventually suffer an electoral explosion on an 1813 scale.

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The podium is seen empty as Ontario Premier Doug Ford delays a news conference in Toronto on Sept. 10, 2018.COLE BURSTON/The Canadian Press

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