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Ford invoking notwithstanding clause to override judge decision on Bill 5
Published Monday, September 10, 2018 5:09AM EDT Last Updated Monday, September 10, 2018 8:27PM EDT
Premier Doug Ford says he intends to use the Charter’s notwithstanding clause to override a judge’s decision to strike down provincial legislation that would have cut the size of Toronto city council nearly in half.
Speaking to reporters at Queen’s Park on Monday, Ford said he plans to recall the legislature on Wednesday to reintroduce the Better Local Government Act and invoke Section 33 of the Charter, commonly referred to as the notwithstanding clause. The clause gives Parliament and provincial legislatures the power to override certain portions of the Charter of Rights and Freedoms.
"Our cabinet is 1,000 per cent behind this decision," Ford said after calling the judge’s ruling “deeply, deeply concerning.”
In his written decision released Monday morning, Superior Court Justice Edward Belobaba concluded that the province "crossed the line" when it enacted Bill 5.
He ruled that the enactment of Bill 5 in the middle of an election "substantially interfered" with the freedom of expression of both the municipal candidate as well as the voter under the Charter of Rights and Freedoms.
"It appears that Bill 5 was hurriedly enacted to take effect in the middle of the City’s election without much thought at all, more out of pique than principle," Belobaba said in his written decision.
Bill 5 aimed to reduce the number of Toronto city councillors from the planned 47 to just 25, a move Ford claims will make the "dysfunctional" council more efficient.
Ford lashed out at the judge’s ruling on Monday.
“Virtually every single legal expert agreed that this law was completely constitutional and within the legal power of the province to enact, experts including those who do not support our government,” Ford said.
“I have a great deal of respect for our judicial system but lawmaking power is given by the people… We are taking a stand. If you want make new laws in Ontario or in Canada, you first must seek a mandate from the people and you have to be elected.”
The notwithstanding clause has never been used in the province of Ontario before.
At a news conference held late Monday afternoon, Toronto Mayor John Tory called the decision to invoke the notwithstanding clause “unprecedented.”
“It is not acceptable to me, but more importantly I do not believe that it is acceptable to the people of Toronto,” Tory said. “Why is it so important to have these changes in place, whatever you may think of them, in this election to the point where you would override the charter of rights and freedoms for the first time in the history of the province of Ontario?”
Tory said that he will be reaching out to mayors of other big cities to ask for their support and advice, calling Ford’s decision an “extraordinary curtailment of rights.” He also promised that, if reelected mayor in October, he would hold a city-wide referendum on the size of city council so that the people of Toronto could have their voices heard.
“The so-called left want a larger council. Everyone is using democracy as a defense and yet no one has bothered to ask the people what they want,” he said. “I firmly believe that people don’t want either constitutional meddling, constitutional debates or election meddling, but I think they would welcome an opportunity to be heard on this, recognizing as I do, that there are diversity of opinions in the public in this matter.”
A special city council meeting has been called for Thursday to discuss the city’s legal options.
Some had speculated that Ford would not take the unprecedented step of invoking the clause given the controversial nature of the provision.
Others, like Ontario NDP Leader Andrea Horwath, suggested that its use speaks more to Ford’s personal history with Toronto city council than his understanding of the judicial system.
“Just because there’s something that exists that allows a premier to trample on people’s charter rights (doesn’t) necessarily indicate that it should be utilized,” she told reporters at a news conference held on the heels of Ford’s announcement.
“He’s doing it because of a personal and political vendetta not only against city councillors in Toronto that he wasn’t happy with when he served with them, but because he believes he has the right to tell people who they should and shouldn’t elect to city council.”
Horwath vowed her party would continue to oppose the move and that she looks forward to the results of a final vote in legislature
“You’re not the king of Ontario, Mr. Ford,” she said. “You may have been elected with a majority government, yes, but we are living and functioning in a democracy and you better look it up.”
Some sitting Toronto city councillors expressed similar sentiments.
Speaking to CP24 at city hall, Coun. Paula Fletcher said if the Ford invokes the notwithstanding clause, his government would be a "laughing stock" in Canada.
"That would simply be a tantrum by the premier of this province," she said.
"His government needs to put him in check.”
Ward 27 Coun. Kristyn Wong-Tam called the clause a “very heavy and blunt instrument.”
She said she believes Ford’s move tramples on charter rights.
“This is Doug Ford at his usual,” she said. “We have to remember that the constitution and the charter are the highest laws of this land, they are the strongest, we are bound to those laws. Ford is saying that he doesn’t care if those laws are infringed, he’ll do what we wants, which is why I’m saying he’s taking a big step towards dictatorship. I don’t believe I’m overstepping by saying that, this is exactly what a dictatorship looks like.”
But other councillors, including Ward 7 Coun. Giorgio Mammoliti, feel Ford’s reaction was warranted.
“It takes way too long to make a decision and yes, this is the largest municipality in the country, but at the same time those decisions could be made with less government and less people,” Mammoliti told CP24. “That’s the reality that most people -- the taxpayers who we should all have respect for -- are suggesting at this particular time. So Premier Ford is doing what the taxpayers want him to do.”
At a news conference earlier Monday, Tory said the Ford government would need to justify the use of Section 33 if they chose to pursue that option.
"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, this particular change at this time, qualify as one of those," Tory said.
Tory said the judge agreed with the city that it is not fair to "change the rules in the middle of the game."
"That is not fair to anyone and this is not a game. It is an election campaign, one of the most fundamental foundations of our democratic system. The court has agreed with that," he told reporters at city hall.
"Now that the court decision has been issued, I think it is extremely important that we hear from the premier and the government of Ontario and from other Ontario legislative leaders (on) why a reduction in the size of the city council in the middle of an election campaign is more important than considering such change… at a different time and in a much different manner?"
Councillors celebrate judge's decision
Prior to Ford’s announcement, many city councillors applauded the court’s ruling, calling it a victory for democracy.
“Introducing and passing Bill 5 would have reduced Toronto City Council to 25 sets doubling the number of residents to be served in every ward and lessening the ability of voters to receive effective representation and service from their elected councillors. It is inexcusable that the Ford government targeted only the city of Toronto for these dramatic changes," Fletcher said.
"Hopefully this win for democracy will be respected by Premier Ford and his government members so that the City of Toronto can proceed with its democratic elections this fall.”
Coun. Mike Layton said he hoped that the ruling would serve as a "lesson" to Doug Ford and his government.
"This is good news for local democracy and to unfair government interference with election," Layton tweeted. "Duty to consult is real and we WILL fight back."
Earlier Monday, Wong-Tam said many council candidates held off registering in the 25-ward system pending the outcome of the court case.
“I have a lot of friends who were running in this particular election, people who I’ve mentored, people who I’ve encouraged to run, and the last thing we wanted to do was engage in some form of 'The Hunger Games,'" she said.
“You notice that a lot of the progressive councillors did not register in the 25-ward system. We were very calmly waiting for the judge’s decision. We believed in the judicial process. We believed that we had a strong constitutional argument and challenge and we are thrilled that the judge has ruled in our favour.”
She added that she is certain the judge would have crafted his ruling to withstand an appeal.
“I’m also certain that the province knows that they themselves have a very steep, uphill battle to overturn this ruling,” she said.