By JUSTIN GIOVANNETTI, JEFF GRAY
Tuesday, September 11, 2018
Premier says he will invoke rarely used notwithstanding clause after judge rules move to reduce number of Toronto councillors is unconstitutional Premier Doug Ford says he plans to use the Constitution's notwithstanding clause to overrule a judge's decision that a law cutting Toronto's council in half violates the rights to free expression and to elect effective representation.
The Premier's announcement on Monday afternoon, only hours after the judge's ruling was issued, comes only six weeks before Toronto voters head to the polls in a municipal election. Mr.Ford said he will recall the legislature on Wednesday for an emergency session to debate the government's intention to use the notwithstanding clause, which would be unprecedented for an Ontario government. He said he will also appeal the ruling, which he called unacceptable interference in provincial authority.
"I believe the judge's decision is deeply, deeply concerning," Mr.Ford said at a news conference near Queen's Park on Monday afternoon. "He's the judge, I'm the Premier. He gets to use his tools.
I'll use every single tool to stand up for the people of Ontario."
Toronto Mayor John Tory vowed to fight the province's appeal in the courts.
He said using the notwithstanding clause would be a "gross overreach," and akin to "using a sledgehammer on a fly."
The notwithstanding clause, also known as Section 33 of the Charter of Rights and Freedoms, is a seldom-used part of the constitution that allows government legislation to override some parts of the Charter for up to five years. To use it, Mr. Ford's government would have to pass a new version of the law that includes a reference to the clause.
Introduced as a concession to western premiers by then-prime minister Pierre Trudeau during negotiations to adopt the Charter, the notwithstanding clause has been considered a last-ditch provision to be used only when a government feels the courts have overturned a law fundamental to a province. The federal government has never used the clause.
Mr. Ford introduced legislation to cut city council to 25 wards from 47 this summer, in the middle of the municipal campaign.
On Monday, the Premier warned he could use the notwithstanding clause on other issues if the courts continue to second-guess what he views as his government's mandate.
"No one else is the judge and jury with the people of Ontario, except for the people of Ontario," Mr. Ford said.
"I don't believe in threats, I believe in democratically elected governments moving forward on their mandates," the Premier told reporters when asked whether he was putting the judiciary on notice. "If our decisions changing the laws making this province better ... are being shot down by the courts, that's scary."
Mr. Ford's decision comes in response to a ruling released on Monday morning by Ontario Superior Court Justice Edward Belobaba that declared the Ford government's law unconstitutional.
In his decision, Justice Belobaba called Mr. Ford's move to cut the number of city councillors "unprecedented" with a campaign under way.
"It is only when a democratically elected government has clearly crossed the line that the 'judicial umpire' should intervene. The Province has clearly crossed the line," Justice Belobaba wrote.
He ruled that Mr. Ford's changes, referred to as Bill 5, violate the Charter's free-expression clause because they were enacted in the middle of a campaign. He also ruled the doubling the average population size of the city's wards, to 111,000 from 61,000, breaches "the municipal voter's right to cast a vote that can result in effective representation."
The judge's ruling would uphold Toronto's 47-ward structure for the Oct. 22 election. Toronto's city clerk issued a statement on Monday saying the city is preparing to go ahead on this basis. Mr.
Ford later asked the clerk's office to abandon those plans.
Mr. Tory announced a special council meeting on Thursday to hear from city lawyers on what he said were Toronto's likely limited legal options.
On Monday evening, Mr. Tory said he met with Prime Minister Justin Trudeau to discuss Mr.
Ford's plan to use the notwithstanding clause. And Mr. Tory said he would, if re-elected this fall, hold a referendum on the size of council, something he called for the day Mr. Ford announced his plans at the end of July.
Ontario lawyers were expected to seek a stay of Monday's ruling pending their appeal in the next couple days - and Mr. Tory said the city's lawyers would fight both the stay and the appeal.
"This is unprecedented, and it is not acceptable to me but more importantly, I do not believe that it is acceptable to the people of Toronto," Mr. Tory said of the Premier's plan to invoke the notwithstanding clause, which he said should be used in very extraordinary circumstances only.
"Why is it so important to have these changes in place, whatever you think of them, that you would override the Charter of Rights and Freedoms for the first time in the history of the province of Ontario?" he said, urging MPPs to think hard before this week's vote on the move.
Mr. Tory's main mayoral challenger, former city chief planner Jennifer Keesmaat, vowed to fight Mr. Ford's move, calling it the "settling of a political grudge" and pointing out that the Premier did not campaign on cutting Toronto's city council.
"We must fight vigorously to protect the Canadian Charter of Rights and Freedoms," Ms. Keesmaat said in a brief interview.
"The invoking of the notwithstanding clause is a direct violation of those rights."
Mr. Ford has promised an open vote in the emergency session.
"Our first order of business will be to reintroduce the Better Local Government Act and with it, invoke Section 33 of the constitution," Mr. Ford said. The province's opposition parties have vowed to oppose the move by Mr.
Ford, a onetime Toronto councillor and failed mayoral candidate.
"Invoking the notwithstanding clause in a case like this is an unprecedented move, literally suspending the Charter rights of Ontario people in order to plow ahead with his revenge plot against his political enemies at Toronto city hall," NDP Leader Andrea Horwath said.
Mr. Ford also seemed to take aim at Justice Belobaba on Monday, stating that: "I was elected, the judge was appointed. He was appointed by one person: Dalton McGuinty."
Mr. McGuinty, the Liberal premier at the time of the judge's appointment, had no say on the issue because Superior Court Justices are appointed by the federal government. Mr. Ford's office told The Globe and Mail later on Monday that the Premier had misspoken and meant to say prime minister Paul Martin, who was the federal leader at the time of the appointment.
City councillors and candidates who oppose Mr. Ford's cut went within hours from praising Justice Belobaba to vehemently criticizing the Premier, as the fall municipal vote remained under a cloud of uncertainty.
Downtown city councillor Kristyn Wong-Tam said Mr. Ford's plan to use the notwithstanding clause, and his warning that he would use it on other issues, were worrying: "He's becoming a very dangerous person. He's taking steps toward dictatorship."
Councillor John Campbell, who represents a ward in Mr.Ford's political homeland in the west-end suburb of Etobicoke but opposes the Premier's changes, called his move Monday an abuse of power.
"I think it shows a blatant disregard for history and convention," Mr. Campbell said. "It makes us look like a banana republic. ... It was completely disingenuous of him to not make this an election issue, because he knew it would cost him votes."
Ontario Premier Doug Ford warned he could use the notwithstanding clause on other issues if the courts continue to second-guess what he views as his government's mandate.
FRED LUM/THE GLOBE AND MAIL
Toronto Mayor John Tory exits a news conference at City Hall on Monday. Mr. Tory says he views Ontario Premier Doug Ford's plan to invoke the notwithstanding clause as 'unprecedented.'
FRED LUM/THE GLOBE AND MAIL
TRISH McALASTER / THE GLOBE AND MAIL SOURCE: CITY WEBSITES, POPULATION DATA IS FROM 2016 CENSUS
The council chamber at Toronto City Hall sits empty in 2014. Some say Doug Ford's plan to invoke theConstitution's 'notwithstanding clause' to uphold a law that would reduce city hall's number of electedcouncillors is the most gratuitous use of the clause since its creation nearly four decades ago.
FRED LUM/THE GLOBE AND MAIL