Why it Still Matters: Reviewing the Bills 5 & 31 Crisis

It seems that Premier Doug Ford has won his first major battle as premier, reducing Toronto council from 47 to 25 members. It also appears that the constitutional crisis over his invocation of the notwithstanding clause (section 33) of the Canadian Charter of Rights and Freedoms has been resolved without his using section 33. Calm has returned to the Ontario political and legal landscape, as far as these matters are concerned, but it is likely to be short-lived. We have learned from this fiasco, and from earlier decisions, that Ford has no regard for political or constitutional conventions and every regard for pursuing an agenda that reflects his own pique and “damn the torpedoes” style.

It also shows us yet again that conflating the political and constitutional roles of the attorney general risks the former overriding the latter, especially, perhaps, in the case of an experienced and weak attorney general.

A brief reminder of how we got where we are and why it matters. With the Ontario Court of Appeal’s decision to grant a stay of Justice Belobaba’s decision finding Bill 5 unconstitutional (and in the course of doing so, delivering the message to the extent possible that the latter’s decision will not be upheld on appeal), we can sit back and review from a (very short) distance the events of the past few weeks and what they presage for Ontario politics in the future.

Ford announced in late July (not long after the June 7, 2018 election) that he intended to introduce legislation to cut the size of Toronto council. There were three problems with this, noted extensively by commentators. Firstly, he had made no mention of this during the campaign. All we had heard was a general and vague promise to cut the size and cost of government. Secondly, the municipal election had already begun. Thirdly, a study had recommended in 2016 that council actually be increased, from 44 to 47 councillors. Not surprisingly, many questioned the shipshod nature of how Ford went about making such a significant decision.

The Progressive Conservative government introduced Bill 5, reducing the number of wards to 25 (and affecting regional governments in the area), on July 30, 2018 and by August 14th, it had received Royal Assent, providing no time for public consultation. To say the bill was rushed is being unduly kind. Despite Ford’s claim that it didn’t make sense to let the current election go ahead, when he would seek to reduce wards subsequently, this is the second “hint” that the motivation behind Bill 5 was suspect.

There is little doubt that the Ontario legislature has the authority, absent other factors, such as the Charter, to enact legislation affecting municipalities, which have no independent status. Their powers derive from the province, a problem highlighted by Ford’s treatment of Toronto and one that requires remedying. This is especially true when the province fails to show sufficient respect for the municipality to engage with it on important matters.

This does not mean that Bill 5 is not suspect. Challenges on Charter grounds seem to have failed, given the Ontario Court of Appeal’s decision (notably a decision “of the Court”) granting a stay of the trial level decision that did find Bill 5 unconstitutional. The Court wasted no words in its assessment that it would not likely survive an appeal (although that nevertheless still remains to be decided after the election). And, indeed, the Superior Court decision did stretch the parameters of the Charter’s guarantee of free expression and its linking of the guarantee of the right to vote with the right of free expression.

Significantly, although the government did appeal the initial decision, this was not enough for  Ford who, before obtaining a stay, jumped with both feet into the sensitive area of the Charter’s notwithstanding clause (section 33). Making his disdain for (and perhaps ignorance of) the political/judicial relationship clear, he announced, “I was elected. The judge was appointed” and that “What’s extraordinary is…a democratically elected government trying to be shut down by the courts.” He followed this with the introduction of Bill 31 containing the override; however, although there was considerable legislative debate and challenge to the override’s use, it was upstaged by the stay of the original decision. This does not mean it would not be resuscitated in the unlikely event that the initial decision is upheld when the appeal of the merits is heard.

Ford’s use of section 33 was a first for Ontario and received considerable blowback, although probably not from those Ford considers his supporters. We shouldn’t expect that he won’t invoke it again. His response is more likely to be “I’ll show you!” than “I’ve learned something about constitutional practice and conventions”. And it seems from this experience that we cannot expect anything better from the attorney general, Caroline Mulroney. While we do not know what she (and perhaps others in the more moderate wing of the party) might have tried to do in private, she has shown herself to favour her political rather than her constitutional role and we likely cannot look to her to ensure that we do not fact this problem again, unless more experience is accompanied by more confidence to challenge her boss.

It can be argued that Bill 5 failed to satisfy the rule of law. On the surface, Ford’s rationale that it was not cost effective to wait until after the current election to introduce the bill, for which there had been no hue and cry, is weak and assumes that the bill would pass the legislature (although it probably would, it’s another thing to assume it) and would be found constitutional if challenged. Bill 5 was based on no studies or consultations. The figure of 25 was determined solely by reference to the number of constituencies in Ontario at each of the provincial and federal levels, ignoring the different role played by municipal councillors and their relationship with their constituents compared to their provincial and federal counterparts. No evidence supported the assertion that reducing the number of wards would save costs, as Ford claimed. Ford also justified Bill 5 as a remedy for what he described as “‘the most dysfunctional political arena in the country‘”. It did not go unnoticed that some of the most dysfunctional times at Toronto council occurred during Ford’s late brother Rob’s tenure as mayor and Ford’s own time as councillor.

That the Bill “came out of the blue”, threatened to disrupt an ongoing election (which is now ongoing, in fact, relatively smoothly), was not based on evidence (and indeed, evidence in the 2016 study contradicted it), failed to recognize the nature of municipal government and councillors’ responsibilities and the history of Ford’s own and his late brother’s experiences on council raised red flags about why Ford introduced the legislation and its timing.

All these factors support a contention that Bill 5 was introduced in bad faith, prompted by Ford’s desire for vindication and to “get back” at those councillors who had opposed him and treated them with disdain. Rob Ford had wanted to halve council and Bill 5 represented a post-death vindication of Rob. It is true that Bill 5 was not a “diktat” of Ford, it was enacted by a majority of the  legislature (all Tories). Nevertheless, it is hard not to conclude that the impetus for Bill 5 came from Ford, not from the party or from other members. This is a case where it can be fairly be said that improper motive and use of the legislative process lies with Doug Ford.

There is a very good chance that he has succeeded, not just in the short term, for this election, but at least until another government decides to increase the number of Toronto wards again. Ford’s abuse of the system worked for him and we can full expect that he will use whatever tactics he needs to achieve what he wants.

Ford’s latest thrust is to establish a committee to look into the reason for the deficit left by the Liberals, promising he’ll reveal the “biggest coverup in history“. Except that there isn’t a coverup, since the issues he’s talking about were revealed prior to the election. At his annual BBQ on the weekend, his supporters chanted “lock her up”, referring to Kathleen Wynne.

We’re on notice, and have been since the campaign, that Ford cares not a whit about respect for the political system, for distinguishing Canadian approaches from south of the border, or indeed, adopting some of them (although he has, so far, supported the federal government on NAFTA) or for accuracy. Doug Ford is a “street fighter”, at least figuratively speaking; he punches first and punches harder when someone tries to push back. He doesn’t care about rules, protocols and conventions. From time to time, the political landscape can use some disruption, some shaking up, but when a premier operates on disruption and chaos for the sake of chaos, we’re in for a jarring and jerky few years that augers ill for Ontario as a whole.

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