Ontario Superior Court Justice Edward Belobaba said at the outset of the hearing that while it's clear the provincial government had the ability to pass a law cutting the number of Toronto city councillors from 47 to 25 seats, the powers of a province must not violate the Canadian Charter of Rights and Freedoms.
Judge to rule on size of Toronto Council
Belobaba encouraged lawyers representing the city, province and other intervenors to focus on how Bill 5 — called The Better Local Government Act — impacts charter rights which protect freedom of expression in their submissions.
"My interest, and I'll be very blunt to you today, is in the argument that is presented by the city," he said. "Whether or not (the charter and) freedom of expression …. has been infringed here because of the decision to go from 47 down to 25."
The legislation, which passed earlier this month, aligns the city's ward map with federal ridings in time for the Oct. 22 municipal election, a move Premier Doug Ford has argued will improve decision-making and save $25 million. It also cancels planned elections for the head of council position in the regional municipalities of Muskoka, Peel, York and Niagara, turning them into appointed roles.
Belobaba said he plans to rule on the case by the second week of September because of the looming municipal election. He also acknowledged that regardless of the decision he makes, he expects the losing party is likely to appeal.
“I continue to believe that challenging this legislation and the process used to introduce it is the right and responsible thing to do,” he said. “I look forward to Justice Belobaba’s ruling – I believe it could set an important precedent.”
Lawyers for the City of Toronto argued that reducing the number of councillors in the middle of an election is "discriminatory and arbitrary," and violates the charter.
"There's no precedent like this where a government has interfered mid-stream in an election," Diana Dimmer said. "That simply can't be justified in our democratic society."
The province argues that municipalities are "creatures of the Legislature" and have no recourse when it comes to the powers of the province over their affairs.
Lawyers for the Progressive Conservative government also say that the legal challenges have "no merit" and have asked for the cases to be dismissed and the province awarded costs.
Outside of the courtroom, Rocco Achampong, a lawyer and council candidate who launched the first legal challenge of Bill 5, said he's hopeful the judge will overturn the law.
"We are encouraged by the arguments put forward by the city … by ourselves and the intervenors in this case," he said. "We just want a fair chance at preserving the integrity of the 2018 Toronto and municipal elections in Ontario."
Mayor John Tory called Bill 5 "unacceptable" and said he fully supported the city's legal action.
Outside of the courtroom, Rocco Achampong, a lawyer and council candidate who launched the first legal challenge of Bill 5, said he’s hopeful the judge will overturn the law.
"I continue to believe that challenging this legislation and the process used to introduce it is the right and responsible thing to do," he said. "I look forward to Justice Belobaba's ruling — I believe it could set an important precedent."
Lawyers for the City of Toronto argued that reducing the number of councillors in the middle of an election is “discriminatory and arbitrary,” and violates the charter.
Toronto city councillor Janet Davis said she was encouraged by the judge's statements, calling the province's intervention in the election "unprecedented."
"I think that the way that arguments have been made and the way that the judge has listened to them gives me some optimism that there may be something happening here that is going to be very important to restore democracy in the city of Toronto," she said.
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The fate of Ontario Premier Doug Fords move to pare Torontos city council to just 25 members in the middle of an election campaign is now before a Superior Court judge.
At the close of a daylong hearing Friday, Justice Edward Belobaba said he would not have a ruling until Sept. 10 or 11 – just days before the extended Sept. 14 deadline for nominations ahead of Torontos looming Oct. 22 vote. He acknowledged that whatever he decides will likely be appealed.
And he told his courtroom he still had no idea how he would rule: I am not sure yet which way this is going to come out.
About 100 people, including council candidates involved in the case and many members of the public, sat in the gallery for the hearing as lawyers for the city and for council candidates made their case against Mr. Fords move. They argue it violates both the Charter of Rights and Freedoms and unwritten constitutional principles of democracy and the rule of law.
The province counters that cities are created by provincial legislation and have no constitutional status, and that Queens Park is well within it rights to redraw Torontos ward boundaries – even with an election under way.
Bill 5, the Better Local Government Act, was rushed through the Ontario Legislature and passed Aug. 14, even though campaigning for Torontos municipal election began May 1. The move reduced the number of wards to 25 from 47, using the federal and provincial riding boundaries instead of new wards approved by the city and the Ontario Municipal Board after a four-year review.
While the idea was never mentioned during the campaign before the June 7 provincial vote that put Mr. Ford into power at Queens Park, the former Toronto councillor and mayoral candidate had long held that Torontos dysfunctional council needed to be cut down to size.
Justice Belobaba said as proceedings got under way that he was focused on the argument that the law violates the free-expression guarantee in the Charter, and whether the Charters voting-rights provisions – normally reserved for the House of Commons and provincial legislatures – could apply to a municipal vote.
He also asked questions about the issue of whether the much larger wards – with an average of 110,000 residents – would impede what is known as effective representation for citizens, a concept upheld in a previous Supreme Court ruling. Federal MPs do not deal with local issues such as speed bumps and manholes, he said, and citizens have a right to access their local representative.
The citys lead litigator, Diana Dimmer, called Bill 5 an unprecedented move to interfere in an election that was well under way: There is no precedent for this, your honour, where a government has interfered like this midstream in an election and that simply cannot be justified in a democratic society.
Lawyer Howard Goldblatt, acting for a group of candidates for council including school trustee Chris Moise, said the province had rewritten the rules not in the middle of the game but when the third quarter of the game had begun.
Mr. Goldblatt argued that redrawing Torontos local electoral map essentially tosses out all of the campaigning done to that point, violating the Charters free-speech provision. He also said most candidates cannot hope to raise any more money, having already raised the maximum limit from their donors, meaning those funds have essentially been wasted.
Lawyers for the Ontario government argued that constraining the provinces right to do as it wished with its municipalities would create a constitutionally entrenched third order of government, insisting that the way municipal elections are carried out is solely up to the province.
But Justice Belobaba peppered the governments lawyers with questions. At one point, he told the governments lead lawyer, Robin Basu, that he doubted the Ford government bothered to get a legal opinion on whether Bill 5 was constitutional before rushing it through the Legislature: I bet the answers no.
Later, Justice Belobaba questioned government lawyer Yashoda Ranganathan repeatedly about whether she believed Queens Park needed to abide by the Charter when drawing up legislation that allows for municipal elections.
She responded by asserting the governments argument that the Charters voting-rights provisions do not apply to municipalities.
Queens Park cant pass a law saying only white males can serve as councillors, the judge interjected. Queens Park cant pass a law that says only women can vote.