Premier Doug Ford had the right to slash the size of Toronto city council in midelection in 2018, the Supreme Court of Canada has ruled, in a split decision that a disappointed legal scholar says will have ongoing impacts for cities.
In
the 5-4 ruling released Friday, Canada’s top court said Bill 5, the Better Local Government Act, did not infringe Torontonians’ freedom of expression rights and fell within the province of Ontario’s expansive powers.
The decision solidifies the status of cities — even a global one like Toronto with an annual budget bigger than that of most provinces — as creatures of provincial legislatures, and ensures Toronto’s 2022 election will proceed with 25 mega-wards.
“The change to the ward structure did not prevent electoral participants from engaging in further political expression on election issues under the new ward structure in the 69 days between the Act coming into force and the election day,” said the majority decision written by Chief Justice Richard Wagner — that period, he noted, was longer than most federal and provincial campaigns.
The decision found the act did not substantially interfere in the election — that it did not restrict candidates’ ability to campaign, raise “significant” funds and garner votes under the new ward structure, nor did it impact voter rights.
Toronto city council had previously voted to have a 2018 election with 47 smaller wards after a years-long independent review and public consultation to redraw the boundaries — what advocates hoped would provide better representation for a growing city whose wards had become unbalanced in population.
Wagner wrote that because municipal elections are not based in the constitution like provincial and federal elections, the province can “change the rules as they wish” as long as it does not amount to “substantial interference,” and to decide otherwise would interfere with provinces’ authority under the constitution.
Wagner also found that municipalities, unlike federal and provincial governments, are not guaranteed effective representation — which includes the idea that all votes should have equal weight and therefore population sizes between electoral boundaries should be balanced.
A sharply worded dissent written by Justice Rosie Abella found the midcampaign interference did substantially interfere in freedom of expression rights.
“It is incumbent on a provincial legislature to respect the rights of its citizens to engage in meaningful dialogue on municipal issues during an election period and, in particular, the rights of candidates and voters to engage in meaningful exchanges before voting day,” Abella wrote.
She continued: “By radically redrawing electoral boundaries during an active election that was almost two-thirds complete, the legislation interfered with the rights of all participants in the electoral process to engage in meaningful reciprocal political discourse.”
She said there was no “pressing and substantial” explanation offered by the province for the late interference.
“There was no hint of urgency, nor any overwhelming immediate policy need.”
University of Toronto law professor Mariana Valverde called the majority decision a failed opportunity to legally recognize how cities have grown and matured since the British North America Act gave them no official status in 1867.
“It’s bizarre to pretend that Canada hasn’t urbanized and that municipalities are somehow the same as some administrative body that the province could create or destroy,” Valverde said in an interview.
Under the majority reasoning, she noted, Ford’s government could appoint the mayor, or abolish the city of Toronto altogether and run things from Queen’s Park.
“Five members of the Supreme Court of Canada are telling Canadians that they have no more right to fair and effective municipal elections than do the citizens of China,” Valverde said, adding the ruling could impact challenges by municipalities and residents to provincial power over megaprojects such as the Ontario Line.
Chris Moise, one of the 2018 Toronto city council candidates who folded his council campaign after the cut, said the court upheld an archaic view of cities.
Instead of giving people like him, a gay, black man, a chance to join a city council that is whiter and more male than the city it serves, the Supreme Court has helped the Ontario government keep the city “with both feet in the past.
“Everyone’s trying to work around a system that’s broken and continues to be broken,” he said. “We still live in a colonial structure which silences the voices of many — Indigenous people, people of colour and others.”
Moise, who sold his house to move into the new ward he hoped to represent, and had built a campaign team that knocked on doors across that ward, was able to get re-elected as a Toronto school trustee.
But Friday’s ruling hurt, he said. “There are still many scars and the decision today is an open wound that is salted again by the system,” he said.
Ontario Municipal Affairs Minister Steve Clark hailed the decision as a victory for “restoring accountability and trust in government,” and said the city and province have worked well together during the pandemic.
“We have never been afraid of making the tough decisions that deliver the best outcomes for Ontarians, and we’d encourage the city of Toronto to remain committed to this positive model moving forward,” Clark said in a statement.
NDP MPP Peter Tabuns said a decision’s legality doesn’t make it right. “Elected municipal leaders and residents deserve a government that respects them, not one that tries to crush them,” he wrote.
Liberal Leader Steven Del Duca said: “Millions have gone years without the level of representation they deserved, all because of a Premier who’ll do anything to get his way.”
Toronto Mayor John Tory struck a conciliatory tone, thanking the top court for its work. While he disagreed with the way Ford cut council, Tory said that both governments will “continue our work together” on the pandemic and more.
The ruling came less than seven months after a one-day virtual hearing where city lawyers and intervenors on the case argued before nine justices that the province had infringed freedom of expression rights and superseded fundamental principles of democracy by interfering midelection.
The province argued it had the right to pass legislation changing the ward boundaries, because municipalities are what are known as “creatures” of the province and that municipal elections are not guaranteed the constitutional right of effective representation.
The decision to update the city’s ward boundaries came as a result of a rapidly changing population that left populations between wards unbalanced and caused concern about unequal representation.
Ford shocked city officials in July 2018 when he announced he would cut the number of wards from 47 to 25 without consultation, overruling the review process and upending an election that was already underway — candidates nominated, campaign materials handed out and doors knocked on.
A group of candidates and voters first challenged the decision in Superior Court — the first step in a legal battle of this kind. With the city’s backing, a judge ruled the council cut was unconstitutional and that the law should be struck down.
But the province was successful in convincing the Ontario Court of Appeal — the next level in the justice system — to stay, or pause, that decision, effectively confirming an election with 25 wards. A later full decision by the court affirmed the province’s arguments and ruled against the city, overturning the lower, Superior Court judgment.
Council directed the city’s legal staff to continue fighting the case to the highest court. They applied to have the issues heard by the Supreme Court, which considers a handful of cases of public and national importance each year.
In March, Ford called the cut to council “the best present I’ve ever given the mayor. Who wants more politicians? It all lines up with the federal, provincial, municipal boundaries and … they’re more than capable of doing the work.”
Jennifer Hollett, another 2018 council candidate side-swiped by Ford’s decision, said Ford has never been able to explain why he made the dramatic, unprecedented move in the middle of a campaign.
“The system is broken,” tweeted Hollett, now executive director of The Walrus media outlet.
“Make no mistake, the interference in the 2018 Toronto election is about money and power. Don’t forget what has happened here. It will happen again.”
