Premier Doug Ford said Monday he will invoke the ‘notwithstanding clause,’ a first in Ontario, to override a court decision that blocks his move to cut the size of Toronto city council. The unprecedented move spurred Mayor John Tory to meet with Prime Minister Justin Trudeau late Monday, to discuss the matter. 

The statement came just hours after an Ontario judge struck down Bill 5, which would have aligned Toronto’s municipal wards with provincial and federal ridings, slashing the number of wards from 47 to 25, just weeks before the Oct. 22 election.

Ford told reporters at a news conference that he is recalling the legislature on Wednesday to hold a free vote on the use of Section 33 of the Charter of Rights and Freedoms, which would trump the decision from the Superior Court of Justice.

“What is very concerning moving forward is if our decisions in changing the laws to make this province better…is being shot down by the courts,” Ford said. “That’s scary — that’s disturbing.”

In his decision, Justice Edward Belobaba said the government had “clearly crossed the line” and that the move, which happened during the civic election campaign, violated candidates’ and voters’ right to freedom of expression.

Tory praised the decision at a press conference at city hall Monday morning saying, “You can’t change the rules in the middle of the game – that’s not fair to anyone and this is not a game.”

Tory said that while the city must recognize that its place in the Constitution is subject to the desires of the province, the duty of the local government is still to represent the best interests of the population.

“This was change being rammed down our throats without any consultation and that was wrong,” said Tory.

Tory has called a special meeting of city council to take place on Sept. 13 to discuss Ford’s decision. Monday morning he said he didn’t think Toronto’s city council size would meet the threshold for the clause. “The people of Toronto and the people of Canada hold their charter rights very dear,” he said.

“The notwithstanding clause was put there for very extraordinary circumstances and very extraordinary instances — and you’d have to ask yourself, ‘Why does this change…qualify as one of those?’”

Fate of municipal election still uncertain

Ford said that his government is just following through on its campaign promises to make government more efficient and cost-effective and that not one legal expert had expected Belobaba’s decision to come back as it did.

“What is extraordinary is a democratically government being shut down by the courts — that is what concerns me more than anything,” he said.

Ford made the distinction between himself and Belobaba — that he was elected and not appointed — multiple times during the conference.

Duff Conacher, co-founder of Democracy Watch and adjunct professor of law at the University of Ottawa, said that the use of the clause is telling of where Ford and his government are at and “disregarding every safeguard of our democracy.”

“They’re quite happy to go to extremes to shove their agenda down voters’ throats,” he said. “It’s a bad sign and outrageous that he would be proposing to use it in this case.”

Generally, the notwithstanding clause is used in cases that involve fundamental rights in Canada and, even then, rarely. Only Saskatchewan and Quebec proclaimed bills that have lawfully invoked the clause, while Alberta and the Yukon have threatened to use it. In 1998, Alberta threatened to use the clause to limit the amount of compensation to victims of forced sterilization, but backed down under public outcry.

Unlike most things passed by governments, the notwithstanding clause is only a declaration, and can pass through legislation quickly, Conacher said. First, the majority-Conservative legislature would declare that the charter doesn’t apply in this case and, if passed, the court’s ruling would be suspended.

“Hopefully enough Conservative MPPs have enough regard for democracy and the rule of the law to vote against Ford’s motion to protect his whim — to do whatever he wants… even if it violates fundamental human rights,” he said.

Conacher said that by using the clause Ford is demonstrating he “fundamentally doesn’t understand democracy” because rule of law and an independent judiciary are crucial to a healthy democracy.

“[He’s] essentially saying: ‘Politicians get to do whatever they want, just because they’re elected, and the law doesn’t matter,’” he said.

Applicant in suit says premier is ‘settling personal beefs by trampling on charter rights’

Belobaba said that had the Better Local Government Act been brought forward six months ago, rather than in late July after the election race had begun, there wouldn’t have been a legal reason to quash it. The province argued that the population in some wards was too large; Belobaba found that six wards had populations ranging from 70,000 to 90,000 and questioned why these specific wards weren’t dealt with.

“Why impose a solution that is far worse, in terms of achieving effective representation, than the original problem? And, again, why do so in the middle of the city’s election?” Belobaba asked.

Referring to the province’s lack of evidence to support cutting municipal wards, Belobaba answered his own questions with: “Crickets.”

Conacher said he thinks that if the government appeals, the court would uphold Belobaba’s decision because it would still be a violation of candidates’ rights.

Walied Khogali Ali, who was planning on running in Ward 23, was jubilant following Belobaba’s decision to keep the 47-ward system, which he said gives people like him an opportunity to run against incumbents. “If we had 25 incumbents return to council I don’t believe that would be progress, I don’t believe that would be in the best interest of our city,” he said. “We need to have other perspectives around the table.”

Now that a return back to the 25-ward system looms, Khogali Ali told the Ryersonian that he doesn’t know if he’ll run, but that city council needs more diverse voices. He said over the course of the day he went from receiving congratulatory messages to ones of confusion. “I think it’s going to be an election — at the end of the day, the folks who’ve been knocking on doors and building support will win.”

In the morning, Ish Aderonmu, one of the applicants in the lawsuit against the province, said he felt great about the decision because it showed the provincial government that the court respected Torontonians’ rights. However, after Ford’s announcement the 34-year-old, who is volunteering for Khogali Ali’s campaign, told the Ryersonian he was “extremely disappointed” that the premier is “settling personal beefs by trampling on charter rights.”

Aderonmu is on his way to becoming a lawyer and, following the roller-coaster of emotions he’s felt over the last month, said he’s still ready to fight for what he believes in. “I’m more jacked than ever to become a voice for people who are traditionally underrepresented,” he said. “This only excites me because I want to go to law school to slay giants.”

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