Five (mostly hopeless) proposals to stop Doug Ford’s cuts to city council
Premier Doug Ford’s surprise decision to chop the size of Toronto city council from 44 members to 25 has been called dictatorial, vindictive and undemocratic. (Though the move does also have some fans.) Is there anything outraged citizens can do to stop him? Here’s a look at five options, presented in order from “you’ve got to be kidding me” to “hmm, maybe that’s worth a try.”
Former chief city planner Jennifer Keesmaat entered the mayoral race on Friday with a bombshell tweet: “Now I have had a chance to sleep on it. Secession.” It wasn’t clear at first whether she was joking about creating Canada’s 11th province, but she later doubled down, saying “laws change,” before slowly backing away from the idea once the press began to run with it.
Sure, laws can be changed, but University of Ottawa law professor Joseph Magnet says the law in question is the constitution, so Keesmaat’s proposal is hard to take seriously.
“You’d need the Senate and the House of Commons on board, and you would need the Legislature of Ontario on board, and that’s just not going to happen,” he says.
Trudeau to the rescue!
Some have suggested that Justin Trudeau’s government could quash the bill. Don’t hold your breath.
According to Magnet, the Constitution Act gives exclusive power to the provinces to create, merge and destroy municipalities. “There is no role for the federal parliament to interfere and tell Ontario what to do,” he says.
Adam Vaughan, the parliamentary secretary in charge of urban affairs, has already told the Toronto Star that Ottawa is “not going to try to rewrite the constitution because of one bad decision at Queen’s Park.”
There is technically one legal option, called “disallowance,” where the federal cabinet could simply wipe the provincial law off the books. But that power hasn’t been used since 1943 and Magnet says doing so would be far too political risky. If Trudeau’s government were to use disallowance on Ontario, it would raise questions about whether they would use it in all kinds of other situations, like forcing a pipeline through B.C. or challenging Quebec’s language laws. “It would create a constitutional crisis,” he says.
A court challenge based on “effective representation”
City council voted in favour of asking the city solicitor to “consider the validity and constitutionality” of the legislation and “its potential violation of the rights of the citizens of Toronto to fair and effective representation.”
“Effective representation” is a right affirmed by the Supreme Court of Canada in 1991. The gist is that provincial and federal electoral districts should be roughly comparable in population size. John Mascarin, a lawyer at Aird and Berlis who specializes in municipal law, says an argument could be made that this same principle applies to wards in the city of Toronto. A lawyer could try to demonstrate that the 25 remaining councillors would have so many people in each of their wards that council would no longer offer effective representation.
Ford appeared to be attempting to head off this argument during question period at Queen’s Park on Monday, when he pointed to Los Angeles, which has 15 city councillors for four million people, making the city’s average ward population nearly 267,000. “When I went to Los Angeles and I told the people we had 44 councillors, they said, ‘How can you get anything done?’” Ford claimed. (Ford didn’t mention the fact that Los Angeles has 97 neighbourhood councils, each with its own elected officers.)
He need not worry, according to Magnet, because the constitution’s democratic principles only apply to Parliament and Queen’s Park. Municipalities fought to be included in the Constitution Act and lost. “To give them a constitutional status now is antithetical to what the constitution makers intended,” Magnet says.
A court challenge under the City of Toronto Act
Mascarin points out that the province’s City of Toronto Act says that the province and city “will agree to consult with each other on matters of mutual interest.” A lawyer could argue that Queen’s Park breached this duty by not consulting the city before moving ahead with its plans to change the composition of council.
Magnet is skeptical of this line of attack. Even if the the PCs failed to consult, he says, “an earlier legislature can’t bind a later legislature,” and therefore the Ford government’s new legislation is what will prevail.
City councillors have voted in favour of mayor John Tory’s proposal to ask the province hold a binding—meaning, legally enforceable—referendum before going ahead with any changes to Toronto’s ward boundaries. Mascarin points out that that courts already decided, during amalgamation in the late 1990s, that these types of referendums aren’t binding.
But Magnet thinks a referendum is the brightest idea of the bunch. He’s certain it would be non-binding, but he believes a vote could at least mobilize citizens and create enough political resistance to get Ford to rethink his plans.
And let’s not forget that the constitution requires Ontario to hold an election at least once every five years. That’s one law the Ford government has no power to change.