The Court of Appeal ruled Wednesday it is in the public interest to move forward with a 25-ward election.
In a major win for Premier Doug Ford’s government, the unanimous decision from a three-judge panel suspends an earlier court decision that found the province’s move to cut the size of council was unconstitutional.
The decision almost guarantees an election on Oct. 22 with 25 wards, cutting the size of council nearly in half. That reality drew mixed emotions at city hall from candidates, including incumbent councillors who must now face off against one another across the city.
“It is not in the public interest to permit the impending election to proceed on the basis of a dubious ruling that invalidates legislation duly passed by the legislature,” says the 13-page Court of Appeal decision to grant a stay of the lower-court ruling that struck down the province’s Bill 5.
The decision also comes as a relief to Ford’s government, which faced ongoing condemnation for trying to usher through new legislation, Bill 31, that would have reintroduced the council cut by overriding charter rights.
In the legislature on Wednesday, Municipal Affairs Minister Steve Clark said the stay “finally allows us to move forward and give that certainty” to Toronto.
“It’s going to provide a more efficient council,” said Clark.
The court ruling Wednesday means the original legislation, Bill 5, will again be in force — at least until an appeal from the province of the earlier court ruling can be heard.
But because that appeal appears unlikely to be in front of the Court of Appeal ahead of the fast-approaching election, Wednesday’s decision essentially decides the ward structure for Oct. 22’s vote.
The judges — Associate Chief Justice Alexandra Hoy, Justice Robert Sharpe and Justice Gary Trotter — outlined that greater weight could be placed on the actual issues raised in the province’s appeal since their decision on the stay would determine whether 25 or 47 wards would be in place for the election.
The key issue in the appeal is whether Superior Court Justice Edward Belobaba erred in law when he deemed Bill 5 unconstitutional on Sept. 10.
The Court of Appeal now says he likely did.
“The question for the courts is not whether Bill 5 is unfair but whether it is unconstitutional,” the decision says. “On that crucial question, we have concluded that there is a strong likelihood that the application judge erred in law and that the Attorney General’s appeal to this court will succeed.”
Belobaba found that Bill 5 “substantially interfered” with candidates’ and voters’ right to freedom of expression under section 2(b) of charter when it interrupted a campaign that had been underway for three months.
Candidates challenging the bill argued that their expressive efforts between May 1 and the passing of the bill Aug. 14 had been rendered useless.
While candidates have been inconvenienced by the legislation, the Court of Appeal said Wednesday, it “does not prevent or impede them from saying what they want to say about the issues arising in the election” and strategizing in a new ward structure.
On voters’ right to freedom of expression, Belobaba said it “must include” their right to cast a vote that can result in “effective representation.”
Effective representation is a right that has been acknowledged by the Supreme Court of Canada and includes the concept that all votes should have equal weight. It also, the court has said, considers an elected official’s capacity to represent their constituents.
Effective representation has been linked to section 3 of the charter, which protects the right to vote. But that section only refers to federal and provincial elections, not municipal ones.
Despite that, Belobaba ruled that the right to freedom of expression should “acknowledge and accommodate” that effective representation as a core purpose of voting. The 25 large wards, the judge concluded, reduced councillors’ capacity to represent their constituents by nearly doubling the average ward population, from 61,000 people to 110,000.
But the Court of Appeal says Belobaba wrongly interpreted a link between sections 2 and 3 of the charter, saying he “appears to stretch both the wording and the purpose” of the section covering freedom of expression rights.
In doing so, the judges agreed with the province’s argument that municipal voters do not have a charter-protected right to effective representation.
“The size of the city’s electoral wards is a question of policy and choice to be determined by the legislative process subject to other provisions of the Charter,” the decision says.
Still, the actual appeal and the issues covered by the stay decision will be subject to a separate hearing. The outcome of that hearing could be challenged in the Supreme Court of Canada if that court agrees to hear the case.
Wednesday’s decision came less than 24 hours after a daylong court hearing that saw provincial and city lawyers once again pitted against one another over the council cut.
In court on Tuesday, the provincial lawyers made last-minute submissions that Ford’s government would take Bill 31 off the table if the stay was granted.
The Court of Appeal judges said Wednesday that position played “no part” in their decision.
The province has said the earliest their appeal could be heard is November, after the election, in order to give everyone time to prepare. A hearing date has not yet been set.
Meanwhile, there are concerns that if the province loses the appeal after a 25-ward election, the newly elected council may be deemed illegitimate and a new election ordered.
Following the Court of Appeal decision on a stay, there are several timeline issues that must still be worked out in a judge’s order because a number of Bill 5 deadlines have passed.
That includes a nomination deadline for candidates. In a news release Wednesday, the city said nominations for the offices of councillor and school board trustee will reopen Thursday and Friday between 8:30 a.m. and 4:30 p.m.
With files from Robert Benzie, David Rider, Rob Ferguson, Samantha Beattie and Jacques Gallant
Jennifer Pagliaro is a Toronto-based reporter covering city politics. Follow her on Twitter: @jpags