Doug Ford to use notwithstanding clause to pass Bill 5 cutting Toronto city council

Judge ruled that cutting the size of city council almost in half in the middle of an election was unconstitutional 

Updated Monday, Sept. 10 at 3:30 p.m. 

Ontario Premier Doug Ford has announced that, for the first time in Ontario, his government will use the notwithstanding clause in the Canadian constitution to pass Bill 5 that reduces the number of wards in the City of Toronto from 47 to 25.

Ford said that the will be recalling the legislature next week to pass Bill 5 and invoke the notwithstanding clause that sets aside the Charter of Rights and Freedoms. 

“I have a great deal of respect for our judicial system,” said Ford at a press conference this afternoon. “I believe our judge’s decision is deeply concerning and the result is unacceptable to the people of Ontario.”

Superior Court Justice Edward Belobaba had struck down Bill 5 that cut the size of city council in the middle of a municipal election.

Bill 5, called the “Better Local Government Act”, was announced by Premier Doug Ford on July 27 and cut the number of city wards from 47 to 25.

This would have also increased the average ward population from 61,000 to 111,000.

Justice Belobaba wrote in his 20-page decision that only when a democratically elected government has clearly crossed the line should the “judicial umpire” intervene.

“The province has clearly crossed the line,” he wrote in the ruling.

Belobaba found that the law “substantially interfered with both the candidate’s and voter’s right to freedom of expression.”

If the province wants to change the size of city council at a future date it may do so, wrote Belobaba, but as things now stand the City of Toronto has 47 wards.

The City Clerk said the election will go ahead on Oct. 22 with 47 wards with advance voting on Oct. 10. Candidate nominations for the 47 ward system closed on July 27 and were certified. 

A critical factor in the decision was the timing of Bill 5 in the middle of the municipal election.

“You don’t change the rules in the middle of an election campaign,” said Toronto Mayor John Tory speaking at a press conference this morning. “What I just cant support us change being rammed down our throats.”

Tory’s main rival in the race for mayor Jennifer Keesmatt weighed in on Ford’s statement to use the notwithstanding clause in  a press release.

“It is completely unacceptable to suspend the Canadian Charter of Rights and Freedoms in pursuit of old political grudges,” Keesmaat said. “And that is what this is about. Premier Ford did not campaign on this issue. He has no democratic mandate to do this. And it is a disgrace to suspend the Charter on this or any other issue.”

Reaction to Ford’s intention to use the notwithstanding clause on social media was swift with city councilors like Gord Perks, John Campbell, Joe Cressy and Janet Davis. 

In his ruling Justice Belobaba asked “whether the enactment of Bill 5 changing the electoral districts in the middle of the City’s election campaign substantially interfered with the candidate’s right to freedom of expression.”

“Perhaps the better question is ‘how could it not?’”

Noting that the immediate impact of Bill 5 was “wide-spread confusion and uncertainty” for candidates and that as a result they “spent more time on doorsteps addressing the confusing state of affairs with potential voters than discussing relevant political issues. The candidates’ efforts to convey their political message about the issues in their particular ward were severely frustrated and disrupted.”

In the decision, Belobaba wrote that MPPs who spoke in support of Bill 5 focused on two objectives – improved efficiency and saving taxpayers money. However, Belobaba ruled that “There is simply no evidence that the two objectives in question were so pressing and substantial that Bill 5 had to take effect in the middle of the City’s election.” 

“Invoking the notwithstanding clause in a case like this is an unprecedented move, literally suspending the Charter rights of Ontario people in order to plow ahead with his revenge plot against his political enemies at Toronto City Hall,” said Ontario NDP leader Andrea Horwath.

The Toronto Ward Boundary Review, which took place between 2013 and 2017, was cited by Belobaba as a reason that voters’ rights to freedom of expression and effective representation was violated.

“The option of reducing and redesigning the number of wards to mirror the 25 Federal Election Districts was squarely addressed and rejected,” writes Belobaba who noted that the 25 ward system was rejected because at an average of 61,000 people per ward “city councilors were already having difficulty providing effective representation.”

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Doug Ford to use notwithstanding clause to pass Bill 5 cutting Toronto city council