The August 14th passage of The Better Local Government Act (the “Act”), which reduces the number of wards for Toronto’s October Municipal election from 47 to 25 , triggered a cacophony of legal discourse concerning the impact of the legislation on municipal representation.
On August 31st, several members of Mills & Mills LLP attended the hearing, heard by Justice Edward Belobaba. The stakes are high: the outcome of this hearing will determine if Premier Doug Ford’s unexpected cut to the size of Toronto city council is lawful.
Freedom of Expression and Effective Representation
At the start of the hearing, Justice Belobaba asked counsel to focus on what he considered the unresolved question before him: does the Act infringe on the freedom of expression guaranteed by s. 2(b) of the Charter of Rights and Freedoms? Several of the applicants, including the City of Toronto and candidate for Municipal Council, Mr. Moise, argued that the Act dilutes the expressive rights of electors and denies them effective representation because of the new larger size of the wards. In short: does one elected councilor for more than 100,000 people infringe on our constitutionally protected rights?
To guide his deliberation, Justice Belobaba asked counsel to consider the Supreme Court Reference re Prov. Electoral Boundaries (Sask.), in which the Court noted that “the provincial exercise of legislative authority [over municipalities] is subject to the Charter,” and that the constitutionally protected rights include not just the right to vote, but the right to “effective representation”. Justice McLachlin, as she was then, writing for the majority, said, “Representation comprehends the idea of having a voice in the deliberations of government as well as the idea of the right to bring one’s grievances and concerns to the attention of one’s government representative.”
Counsel for the applicants and the interveners also argued that the timing of this change in representation, in the middle of an ongoing campaign, was an infringement on the unwritten constitutional principles of democracy and the rule of law. “Once you start an election process, the government needs to stay out of the way,” said Don Eady, a lawyer representing several candidates, electors and community groups intervening in the case.
Heather Ann McConnell, a lawyer representing candidate Chris Moise, volunteer Ish Aderonmu and group Women Win TO, which promotes women candidates, also argued that the legislation created barriers for marginalized people, including visible minorities, women and LGBTQ persons, and “widens the gap” disadvantaged people face in participating in municipal democracy.
Province of Ontario: No Infringement of Charter Rights
Lawyers for the Province of Ontario argued all of those claims should be dismissed as there has been no infringement of charter rights. The city, argued counsel, is not afforded constitutional status and the mechanisms of effective representation are not a “constitutionally entrenched right” but simply a “policy choice.” With respect to the quick timelines, they argued that voter parity was a key and pressing reason to introduce the legislation as soon as possible after being elected.
Furthermore, municipalities are “creatures of the province”, meaning that the provincial government has the legislative authority to make laws in respect of the city. The province created the city, provincial lawyer Robin Basu said, and therefore could also hypothetically “destroy” the city if it chose.
Justice Belobaba was an active adjudicator throughout the hearing, questioning counsel often and thoughtfully. At one point in the afternoon, Justice Belababa stopped Basu to ask if the Ford government had sought legal advice from the attorney-general’s office before introducing Bill 5.
“I’ll bet the answer’s no,” Belobaba said.
Basu, citing solicitor-client privilege, declined to comment.
The case is the second time a move by Ford’s PC majority government has been tested in court since the June election. An Ontario judge ruled at the end of August that a plan to immediately end rebates for buyers of Tesla electric vehicles should be quashed. Ford’s government reversed course on their decision, agreeing that Tesla buyers, like those of other electric cars, would be eligible for rebates as long as their vehicles are delivered and registered by Sept. 10.
Justice Belobaba, mindful of the pressing nature of this matter, promised counsel – and the many members of the public in attendance – that he would do his best to render a decision by Tuesday, September 11, at the latest, just a few days before the deadline for nominations.
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