Premier Doug Ford’s 2018 mid-election slashing of the size of Toronto city council was constitutional, the Ontario Court of Appeal has ruled, overturning a lower-court decision.
In a 3-2 decision, the appeal court said in a decision released Thursday there is no doubt Ford’s move to slash the size of city council months after the start of the election “disrupted campaigning and the candidates’ expectations.”
But none of the arguments advanced by the City of Toronto, in support of a September ruling by a Superior Court judge that Ford’s move violated Torontonians’ charter rights, are valid, the appeal court concluded.
“The applicants’ complaints have been clothed in the language of (sections 2b) of the Charter to invite judicial intervention in what is essentially a political matter,” the appeal court ruled.
“There is no legitimate basis for the court to accept this invitation.”
Two judges, however, issued a dissenting opinion, finding Bill 5, which cut the size of city council from a planned 47 wards to 25, unconstitutional.
Justice James MacPherson, who chaired the appeal panel, wrote that “by reducing the size of City Council from 47 to 25 wards and changing the boundaries of all city wards mid-election, the Act interfered in an unwarranted fashion with the freedom of expression of candidates in a municipal election.”
The detailed dissenting opinion could increase the likelihood that the City of Toronto and other parties who challenged Ford’s unprecedented move could seek leave to appeal the ruling to the Supreme Court of Canada.
At Queen’s Park, Attorney General Doug Downey’s office expressed satisfaction with the ruling.
“We are pleased that the Court of Appeal for Ontario allowed Ontario’s appeal in this matter,” said Downey’s press secretary Jenessa Crognali.
Ford’s government introduced Bill 5, cutting council to 25 wards from a planned 47 in the middle of an election, July 30, 2018. A bombshell that shocked city staff and council candidates when the Star first revealed Ford’s plan, the bill became law Aug. 14.
Ford’s move trashed the city’s 47-ward model, an increase from 44 selected by city council after several years of public consultations, debate and the hiring of an independent consultant who recommended the new boundaries to equalize increasingly disparate ward populations.
Some candidates, volunteers and residents, successfully challenged Bill 5 in court, with Superior Court Justice Edward Belobaba ruling it unconstitutional and invalid.
“Once the province has entered the field and provided an electoral process, it may not suddenly and in the middle of this electoral process impose new rules that undermine an otherwise fair election and substantially interfere with the candidates’ freedom of expression,” Belobaba wrote.
“The Supreme Court has stated time and again that ‘preserving the integrity of the election process is a pressing and substantial concern in a free and democratic society.’ Passing a law that changes the city’s electoral districts in the middle of its election and undermines the overall fairness of the election is antithetical to the core principles of our democracy.”
With the 47-ward race seemingly back on, Ford made national headlines threatening to use the notwithstanding clause to override the ruling.
That became moot when the province appealed that decision to the Court of Appeal and won a temporary freeze on the Belobaba’s ruling, allowing the Oct. 22, 2018 election of a new 25-ward council to proceed.
Full arguments on the appeal were heard over two days last June by five judges.
City lawyer Glenn Chu told them: “This case is about democracy and democratic elections. Once you’ve given us the statutory right to a democratic election, it should be democratic.”
He argued Ford’s mid-election interference infringed the charter right to candidates’ and voters’ freedom of expression, and created “confusion and uncertainty” for them.
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The city asked the court to city rule Bill 5 invalid for the 2022 civic election, allowing the city to — subject to any new provincial rules — hold a regular election with as many wards as it chooses.
The Ontario government urged the judges to rule Bill 5 valid and to order the City of Toronto to pay the province’s $500,000 legal bill.
The council cut did not tarnish the October election, provincial government lawyer Robin Basu argued, saying the smaller race “continued to engage in meaningful public discussion with respect to the election after Bill 5’s enactment.”
The province also suggested the claim of mid-election interference became moot after the election, and that smaller ward sizes would reveal the “dark side of parochialism in Toronto ward politics” with local councillors, not city staff, more involved in handling resident complaints.