Tory slams Ford's use of the notwithstanding clause to halt court ruling

Judge strikes down bill to reduce Toronto council size

An Ontario Superior Court judge has declared that Premier Doug Ford's attempt to slash the Toronto city council during an election is unconstitutional.

There is real gut-level truth to what Ontario Premier Doug Ford said Monday, as he announced that he's recalling the Legislature and will invoke the sacred notwithstanding clause to override the Ontario Superior Court decision which earlier in the day tossed his attempt to cut Toronto City Council nearly in half. "The result is unacceptable to the people of Ontario".

At his press conference, Ford complained to reporters that a "democratically elected government" is being "shut down by the courts".

"And as New Democrats, we're going to keep reminding Ontarians that it doesn't have to be this way".

Tory said the city will oppose an application expected from the province to stay the judge's decision pending an appeal.

She said that while the October 22 election is now likely to be held on the basis of the 25-ward model backed by Ford, city council should nonetheless look at tools to enhance representation in the city, including the possible introduction of new community councils. "It's an uphill struggle but that doesn't mean that something won't be found or that some advice won't be offered when we meet on Thursday". "I would urge PC MPPs to vote against the use of it", said Tory.

Tory also has promised that if he is re-elected this fall he will try to take the issue to residents in a referendum.

Belobaba's ruling is already a dead letter, however, because on Monday afternoon, Premier Doug Ford told reporters that he would call the legislature back into session to pass a presumably identical successor to Bill 5, this time while invoking the so-called notwithstanding clause of the Charter - that is, Section 33, which allows the legislature to pass a law "notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter".

"There is no evidence that any other options or approaches were considered or that any consultation ever took place", he wrote.

Bill 5 would have cut council from 47 seats to 25 seats.

Ontario Premier Doug Ford is pictured at a meeting of economists from major Canadian banks on August 30, 2018.

"That would simply be a tantrum by the premier of this province", she said.

Keesmaat said that Ford's intention to use the notwithstanding clause to alter the size of council is "deeply concerning" and will likely have "implications across the entire country". Although its use is often said to amount to "overruling the Charter", that's not technically correct: it's a part of the Charter, included as a compromise measure to ensure provincial support for the document's adoption in 1982. "This would seem to be relatively narrow but it would set a really risky precedent". "(It) has to be, 'judges have a mandate to overturn unconstitutional laws, but that in this particular instance we disagree with the constitutional reasoning'".

NDP Leader Andrea Horwath exchanges words with Ontario Premier Doug Ford during Question Period at Queen's Park, in Toronto on Tuesday, July 31, 2018.

"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", said Horwath.

"There is a plausible argument that free (expression) may sometimes protect a right to vote - although several things complicate this (i) it is a so-called platform - that is better seen as based on a right to vote in a democratic system (ii) the private nature of voting is a reminder that this is really about representation rather than expression (iii) voters have other ways to express themselves (iv) voters for council still have a right to vote - just in larger ridings", Moon went on.

Municipal lawyer John Mascarin said he was "very surprised" by the decision but emphasized that it appears the judge found that the "timing that was the problem". "Even though racialized communities and women make up more than half of Toronto's population, City Council remains overwhelmingly white and male".

"This is a risky sign of what this government is willing to do", he said.

This isn't Ford doing what he said he would do.

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