While the Bill 5 saga has come to a temporary end, and the debate of what’s fair and what’s constitutional is just beginning, two things have become clear: municipalities are but a mere fly that the constitutional structure can swat at will — and Premier Doug Ford respects the judicial system, so long as it’s in his favour.
The Ontario Court of Appeal granted the Ford government its wish to cut Toronto city council in half with a unanimous ruling by a panel of three judges last Wednesday.
The stay is not the final decision. However, the province’s appeal will not be heard for months — far surpassing the timeline of the upcoming Oct. 22 election.
This ruling ends the political “tug-of-ward” game, and effectively puts in place the 25-ward system that Ford insisted on. While this isn’t good news for everyone, it at least offers some much needed clarity to politicians and voters alike.
However, the decision should no longer be of top concern.
Amidst all the chaos, it’s important to realize that the deeper issue here is the role, or lack thereof, of municipalities in the Constitution.
The municipal government is the closest ally to local communities that make up the city. It is responsible for day-to-day changes, and representing the needs of its citizens. Yet, cities hold no protected status or power under the Constitution.
Under the existing law, cities are considered “creatures of the province,” and lose agency, which allows the province the legal right to restructure municipal elections.
Though not a simple change, cities should be offered some constitutional authority in the charter.
Had last week’s court ruling not gone in Ford’s favour, he would have proceeded with Bill 31, invoking the notwithstanding clause — a first for Ontario. Ford has gone on record to say that he “won’t be shy” about using the clause whenever “appointed” judges oppose his government.
According to the Library of Parliament, the clause was created to alleviate provincial concerns of judicial power by permitting legislatures to protect themselves from judicial review under the Charter of Rights and Freedoms. It was intended to be used rarely, yet judiciously.
Instead, Ford jumped the hypothetical gun when announcing his intent to use the notwithstanding clause, triggering unnecessary public outcry. The Court of Appeal is there for a reason. If only Ford had remembered that before so quickly reaching for the metaphoric red button.
However, we should thank him for sounding the alarm on the existing constitutional vulnerabilities.
The notwithstanding provision was never intended to be used exigently as a first response, but rather as a last resort. Ford’s position sets a new and radical precedent for the future of democracy in Ontario.
“That it might now be used regularly to assert the dominance of any government or elected politician over the rule of law or the legitimate jurisdiction of our courts of law was never anticipated or agreed to,” said former Progressive Conservative premier Bill Davis in an interview with TVO.
Davis was one of the 11 first ministers who put together that constitutional compromise 37 years ago.
Toronto is home to approximately 2.8 million people, according to Statistics Canada. That is 2.8 million people who are, on some key issues, left voiceless until re-election season under the Constitution’s distribution of powers.
Time will tell if Ford’s constant assertion that a smaller council will save taxpayers money and work more efficiently holds any weight— or if this was all for nothing.
In the bigger picture, whether a Ford supporter or not, the issues this dispute has raised should be a concern to all who value the essence of a fair and democratic society.
If this spotlights anything, it’s that municipalities need more guaranteed powers under the Constitution