TORONTO - A judicial decision on Bill 5: what you can do and what you should do; balancing rights and fairness.
Judges with a sense of humour can wrap a legal argument around any nonsensical event. Read Judge Belobaba's arguments supporting his decision to strike certain sections of the Ontario Legislature' Bill 5, the Act which, in part, reduces the number of wards in Toronto' City Council from the proposed 47 to [the perhaps] 25.
They come down to this: the Province has the jurisdictional authority to do it, but the timing is inconvenient; therefore, it impacts negatively on the freedom of expression (a Charter right) of some aspirants to political office.
The timing issue is one the Province could have avoided by consultations with those affected. It is a legal principal, audi alteram partem - listen to the other side.
Incidentally, it is how the Federal Appeals Court justified stopping the Trans Mountain extension of the Kinder Morgan Pipeline, much to the chagrin of Prime Minister Trudeau - he had not done enough consultation with the Aboriginal Communities. A costly oversight, which if not appealed will result in a needless expenditure of $4.5 Billion by Trudeau's government to acquire rights to a pipeline to nowhere. Unwilling to risk a similar political rebuff, Premier Ford immediately announced the Province would appeal, and, by the way, it would invoke the "notwithstanding clause" (section 33 of the Charter) to "override" Judge Belobaba’s decision.
The Legislature will reconvene Wednesday (ndr, today) to introduce and pass the appropriate legislation. The election will proceed, as expected, on October 22, 2018, as per the 25-ward model.
No one has suggested, even remotely, that the Province has no authority to do any of the above. Mayor John Tory, in a meeting with members of the National Ethnic Press and Media Council, admitted that had Bill 5 been proposed during the election campaign, he would have accepted the public's/province's decision. Under the circumstances, he expressed no surprise that the Province intends to appeal.
The City would have done the same had the decision gone the other way. He, along with a phalanx of other Municipal politicians are astounded that Premier Ford would invoke the notwithstanding clause to achieve a “political goal”. Surprise (feint); it’s what political organizations do.
Mind you, during the roughly 35 years since the signing of the Charter, only Saskatchewan and Quebec have used its override provision. The notwithstanding clause was conceived as an extraordinary measure to be employed in exceptional conditions.
Reduced to their essence, the arguments for its inclusion in the Charter aimed to avoid what Libertarians call “judge made” laws. In a perfect world, the notwithstanding clause would secure the primacy of the people’s will and safeguard the democratic process. The judge did not disagree.
His interpretation of breach of fairness and freedom of expression (for the politicians affected by Bill 5) is founded on the contested timing factor: the election process had already begun. Had it? Judge Belobaba chose May 1 as the magic start date. That is when candidates could begin to declare their intention to run.
Registrations to become official candidates would close three months later. Following closing of registrations, declared candidates would have another almost three months to campaign. For the sake of comparison, Federal and Provincial campaigns typically run for 5 weeks, give or take a few days.
Even under the revised registration date (September 14) in Bill 5, municipal candidates would still have their 5 weeks of campaigning. I don’t have any skin in the game, so the judge’s choice was “interesting”. For me, the next election campaign starts the day after the results of the previous one are confirmed.
Doug Ford has decided to prove that might is right. In his view, he has already satisfied the legal principle of audi alteram partem. The public gave him overwhelming support on June 7. Will he risk eroding that support? So far, he is not backing down.