While some lawyers say the move by the province will likely be successful, others involved in the legal battle to stop the province from changing electoral boundaries of city wards say they won’t give up the fight.
Rocco Achampong, a lawyer who filed an application to challenge the constitutional validity of cutting the council wards in the midst of an election cycle, says lawyers are “going to have a lot to do” for the next four years.
“The rule of law must be defended at all costs,” he says.
Achampong, who practises law at Rocco Achampong, Barrister & Solicitor and is a council candidate for Ward 13 Eglinton-Lawrence, says that while he is stretched thin between his campaign, lawsuit and law practice, a challenge of these election results is “something to be contemplated.”
“As lawyers, never accept a conclusion as given,” Achampong says.
“[A]lways use your training, knowing full well that if it offends you in principle, chances are there is a legal argument to be made.”
The province’s two-track approach — appealing and seeking a stay of a decision that quashed the province’s bill, alongside introducing a new bill and invoking the notwithstanding clause in s. 33 of the Canadian Charter of Rights and Freedoms to override eligible Charter protections — is likely to succeed in cutting the number of Toronto councillors down to 25, according to Carissima Mathen, a professor of law at the University of Ottawa.
“It is, of course, possible to challenge the law on other grounds [that] are not subject to the Charter, but it is very unlikely that’s going to happen before Oct. 22,” Mathen says.
“I don’t see much room of further challenge of this in the courts. You could try and argue that the use of the notwithstanding clause itself is somehow deficient, but the Supreme Court [of Canada] has indicated that the legislature has a pretty broad brush when it comes to the notwithstanding clause.”
The province’s invocation of s. 33 comes after an “unprecedented” decision written by Justice Edward Belobaba, a judge at the Ontario Superior Court of Justice, who said in a ruling released Sept. 10 that the province’s bill to cut the size of city council “clearly crossed the line.”
The decision, City of Toronto et al v. Ontario (Attorney General), 2018 ONSC 5151, focused on a challenge to the constitutional validity of a provision of Bill 5, presented by the provincial government to change the number of wards and councillors to 25 from 47, according to Belobaba. He said the provisions of the bill were unconstitutional and should be set aside immediately to allow for planned elections on Oct. 22.
Ontario Premier Doug Ford, however, said the province will fight the court’s decision, indicating that it’s the courts, not the province, that crossed a line.
“No one else is the judge and jury but the people of Ontario,” Ford said at a press conference Sept. 10, the same day Belobaba released the ruling.
“[W]hen we cross that line, that is very concerning to me as the premier.”
Ford said at the conference that “virtually every single legal expert agreed that this law was completely constitutional and within the legal power of the province to enact.”
“What is very concerning moving forward is if our decisions in changing the laws to make this province better, make it more efficient, build transit, build infrastructure, build housing, is being shot down by the courts? That’s scary. That’s disturbing,” Ford said.
On Sept. 13, the majority of City of Toronto councillors voted in favour of exhausting “all legal avenues, including the appeal of any further judicial ruling(s).”
Mathen says that the chances of challenging election results are slim.
“We generally frown on people challenging the results on the basis of anything other than irregularities in the actual voting,” she says.
Mathen says federal disallowance cannot block the province’s efforts either, and there’s no clear case for intervention from the Supreme Court of Canada.
“Before the Supreme Court can weigh in, the issue has to get to them somehow,” says Aaron Dantowitz, a litigation partner at Stockwoods LLP in Toronto.
He says that, apart from the matter of Bill 5’s constitutionality working its way through the appeal process, the only other mechanism to put the matter before the Supreme Court would be a “reference.”
He says this is where the federal government can refer a question to the Supreme Court for its opinion, including a question about the constitutionality of provincial legislation.
But there would have to be a good reason for the federal government to want to get involved, says Dantowitz. “It seems like a rather remote possibility in these circumstances.” As the notwithstanding clause’s force fades in five years’ time, moving forward with an appeal would ensure the legislature would avoid having to renew the legislation every five years, says Dantowitz.
David Butt, a Toronto-based criminal lawyer, says the premier has the power to invoke the notwithstanding clause and it’s “certainly a legislative option available to him.
“It would be a dark day for democracy if he did.”
Butt says the decision by Belobaba was important because it provides “significant advancement” of the law in terms of the relationship between freedom of expression and democracy.
“Tough cases either make bad law or they advance the law,” he says.
Lawyer Aaron Wudrick, federal director of the Canadian Taxpayers Federation, says his organization supported the province’s appeal and believes there is a strong legal argument to be made that Belobaba’s analysis blurred the lines between s. 2 and s. 3 of the Charter.
“We believe parliament is supreme,” says Wudrick, who did not take a stance on the invocation of s. 33.
Alex Neve, secretary general of Amnesty International Canada, on the other hand, said in a statement that questions about the interpretation and application of the Charter “should be pursued through appeals and left to judges to determine.”
“No government in Canada should take the contemptuous step of disregard for the Charter of Rights that the notwithstanding clause offers them,” he said in a statement.
One legal issue the province might encounter is the issue of making the appeal of Belobaba’s decision moot, either by waiting until after the election or by mentioning or going forward with invoking s. 33 and the notwithstanding clause, says Matthew Fleming, a partner at Dentons Canada LLP. The appellate court has the discretion to hear an appeal that has been rendered moot anyway, Fleming says, which may be important if the province wants the precedent set by Belobaba’s decision to be reversed on appeal.
“By saying that the government is invoking the notwithstanding clause, and if the government proceeds, the government has handed an argument to the city on mootness that the city may not otherwise have had,” Fleming says.
— With files from Gabrielle Giroday