Using the Notwithstanding clause on reducing the number of Toronto city councilors :eek:.
Does this man plan to use nuclear weapons to swat flies?
I’d ask what he’s smoking, but I can already guess.
My understanding from the new reports is that the judge agreed that it was within the government’s power to change the council composition, but:
- The timing was an infringement on candidates’ charter rights.
- The act changed the wards in a way that “breached the municipal voter’s right to cast a vote that can result in effective representation.” (quote from the cbc article)
Yep.
The apple doesn’t fall far from the [del]tree[/del] brother.
We’re going to be hearing a LOT more about this idiocy. I think this is the closest that Canadian politics has ever come to Trumpist narcissistic imbecility.
BC politics was a bit of a gong show a while back but nothing this petulant.
This was my understanding as well. The bill will be rewritten and pushed through.
At least this one was stopped (for the time being), it took 4+ years of unrest, school disruption, and millions of dollars lawyers for the Liberals’ “draconian” Bill 115 to be declared unconstitutional. Now the taxpayers are on the hook for hundreds of millions in pay-offs and remedies.
No, it is not being rewritten.
Doug Ford is promising to use the not withstanding clause to override the court. If all he wanted was a smaller Toronto city council, all he had to do was wait until the next civic election and the court’s concerns regarding free speech would be irrelevant.
Yea, if they reintroduced this bill in January 2019 the court’s ruling would not be applicable. But apparently the number of council seats in Toronto is an emergency which requires defying the Charter of Rights.
Hopefully he gets enough internal party pushback that he realizes that’s what the non-insane response is.
Question for the Canadian lawyers like Spoons, Muffin and Northern Piper. Given the Province established the rules for the municipal elections well in advance doesn’t this establish a legitimate expectation that the province must adhere to?
Reading the decision, it looks like the judge not only looked to the Charter but seemed to be basing his judgement on what he considered common civility. He cites the rushed process to create Bill 5, the fact the election campaign had begun May 1st while Bill 5’s Royal Assent occurred over 90 days later and a mere 60 days before the election and he references the need for a “fair and equitable election process”.
I’m confusing things I guess. My question would be 1) could you argue established expectations the mucking about with council seats and 2) where in Canadian law does fairness or civility sit?
Grey, I’ve only just found the actual decision at Canlii, and I’d like to read it first, before I comment.
For others who would like to read the decision, here’s the link:
https://www.canlii.org/en/on/onsc/doc/2018/2018onsc5151/2018onsc5151.html
They sit under the “Rule of Law” doctrine.
“Rule of Law” is a rather nebulous legal doctrine in the common-law world (Canada is a common-law country). In essence, it means that no government, or government actor, may make things up as they go along. In other words, no government (or government actor, such as police) may act arbitrarily. Contrary to what many laypeople think, “Rule of Law” has nothing to do with printed statutes passed by Parliament. But it has to do with fairness, of making sure that everybody has an equal shot at getting justice.
One precedent-setting case that illustrates the Rule of Law in Canada is Roncarelli v. Duplessis [1959] S.C.R. 121. M. Duplessis, the premier of Quebec, decided not to renew Mr. Roncarelli’s liquor license for his Montreal restaurant. Why? Because M. Duplessis did not like Mr. Roncarelli’s religion. That’s an arbitrary decision, and the arbitrariness made it wrong, according to the SCC.
Somewhat similarly, Doug Ford found himself in the Premiership of Ontario. With his majority in the Ontario legislature he arbitrarily decided to cut the size of Toronto council. Under the Constitution, he can do that (Constitution s. 92(8)). But he should not arbitrarily do that during a municipal election period–that’s unfair to the voters who, under his changes, have less voice than they did before (Charter s. 2(b)). Rule of Law again–governments cannot arbitrarily do stuff simply because they are in power.
I’m still reading the decision. Stay tuned.
Interesting stuff.
Thanks Spoons.
Thanks Spoons. I’ll look forward to your thoughts on it.
As for this whole thing I’ve actually been moved to call and email both the Premier and my MPP pointing out how uncompelling this situation is for use of the NWC. As the American’s are finding out, a written constitution helps but accepted norms and practices are what keeps a democratic society stable. This is wildly out of the norm.
And this is the issue that I had to begin with. Technically, the power to slash the Toronto city council does rest with the Premier, but you can’t expect me to believe that it was intended to be used the way Ford is using it. I guess that law was written during a time when political discourse was civil.
And then the f’ing Notwithstanding Clause, even Mulroney admits it is a mistake.
Well, it was written in 1867, and I guess things were a little more civil then. Of course, in those days, we only had four provinces, Toronto was a smallish burg, Montreal was the leading city, and most of today’s Canada either belonged to the Hudson Bay Company or was dubbed Rupert’s Land. I doubt the framers of the Constitution then could have envisioned today’s Canada.
The debate about that goes on, and on and on…
Okay, I’ve read the entire decision. Sorry if my comments are late, but work and other obligations, kept me from returning to reading it, and this thread.
First of all, there seem to be two issues:
-
Did the Conservatives in Ontario violate municipal candidates’ right to free speech under Charter s. 2(b)?
-
Did the Conservatives in Ontario violate voters’ right to free speech under Charter s. 2(b)?
On issue 1, the Court said yes, though I myself am a little unsure. The Court made much of the fact that Toronto municipal election season started on May 1 of this year, though in all the years I lived in Toronto, it never started that early (part of my unsureness). Maybe it did, but it never seemed to. At any rate, the Court looked to how X number of candidates had been looking to fill 47 seats on council, the campaign literature they had prepared, the websites they had set up, and so on, prior to August 14, when the Ontario Government’s bill became law. Telling some of these candidates that it was all for naught, violated their Charter s. 2(b) rights, according to the Court. Note that I’m still unsure about this.
I’m much more sure on issue 2. Yes, the new law violates voters’ rights under Charter s. 2(b). Why? Because (and I agree with the judge) it dilutes an individual voter’s voice. Now, instead of one of 60,000, the voter is one of 100,000 (roughly). The individual voter’s voice had been diminished, which is contrary to Charter s. 2(b). The court case demonstrates this, through proper legal reasoning.
Overall, the underlying implication of the decision is that, had the Ontario Government waited until after the Toronto election to pass its “Shrink Toronto Council” bill, there would be no problem. But with municipal elections coming up, and the passage of the bill, and the “coming-into-force” date, there was a problem.
I will say that this case was a weird one to analyze. There are few authorities cited in the text, which made things difficult. My own feeling is that with so few authorities, the judge had to make a decision on his own, with only the Rule of Law to guide him. The case is, of course, appealable; and that might yet happen.
Grey, I hope this helps.
Thanks Spoons. Dumb bill and even dumber use of the NWC.
I find this utterly preposterous.
Nothing in the Charter explicitly says, nor does any precedent hold, that “diluting” a vote is a violation of a person’s rights. Section 2(b) doesn’t even begin to approach such an argument.
One’s freedom of expression is not in any way being violated by virtue of the pure average ratio between votes and seats in a legislative body. If it were, then one would have to conclude it reasonable to think everyone’s rights are being violated by the number of seats there are in Parliament, which of course has a ratio similar to the one Ford proposed for Toronto City Council. There is no explicit or common law guarantee for a person’s vote to be a particular size of a district, nor should there be, and to begin arguing that X is too many while Y is enough leads inexorable to madness, since even amongst Ontario municipalities there is no consistency at all in terms of the ratio between constituents and councillors. What matters is that a person gets a vote and that, to the greatest extent legally and reasonably possible, the vote counts just as much as another person’s.
Furthermore, this reasoning is totally contradicted by he fact that the judge suggested the bill would be legal to pass after the election. At the risk of pointing out the obvious, doing so would “dilute” the power of a vote by precisely the same amount. You cannot rationally explain why the dilution of a vote violates section 2(b) now, but doesn’t in February of 2019; the effect on the influence of a single vote will be the same. Argument 1, about the bill violating free speech by interrupting the election, is (if I think quite wrong) at least not contradicted by this, since it is context specific.
I should stress that I do not think Ford SHOULD have reduced the size of city council. It was a pointless and purely spiteful decision; it will not make Toronto’s government appreciably cheaper or better. Nevertheless, I think the court’s decision is, quite honestly, one of the worst and most obviously politically motivated in modern Canadian history. Just because the bill was stupid does not mean it was unconstitutional.
I’m not sure what Brian Mulroney has to do with that.
They have the same issues as we do, but much less drama. Rob Ford was the Canadian version of Marion Berry.
Three (right-wing, if this matters) former Premiers: Christy Clark, Brad Wall and Jean Charest; are all very supportive of Ford’s use of notwithstanding clause. They all believe in the powers of an elected Premiership trumps the powers of the Judiciary (even when Ford is nakedly perverting municipal elections).