On Tuesday, the province successfully argued that the Court of Appeal should set aside Justice Edward Belobaba’s decision, allowing the 25-ward election described in Bill 5 to move forward while the appeal court and legislature explore remedies to the issues raised by Belobaba.
Belobaba’s decision quashed Bill 5, the province's initial effort to cut Toronto’s city council. In the Sept. 10 decision, City of Toronto et al v. Ontario (Attorney General), 2018 ONSC 5151, Belobaba said the province's approach to cutting city council was unconstitutional and violated a Charter-protected right to freedom of expression.
The City of Toronto and government of Ontario faced a fresh court battle on Tuesday in the fight over the size of Toronto’s city council before a panel of judges at the Court of Appeal, which included Justice Alexandra Hoy, associate chief justice of the Court of Appeal for Ontario, and justices Robert Sharpe and Gary Trotter.
“The question for the courts is not whether Bill 5 is unfair but whether it is unconstitutional. On that crucial question, we have concluded that there is a strong likelihood that application judge erred in law and that the Attorney General’s appeal to this court will succeed,” the judges wrote in the decision, granting a victory to the province. “It is not in the public interest to permit the impending election to proceed on the basis of a dubious ruling that invalidates legislation duly passed by the Legislature.”
Crown lawyer Robin Basu said Tuesday in court that the province may withdraw Bill 31 — which was set for second reading in the legislature on Thursday and would enforce the 25-ward election by invoking the notwithstanding clause — if the court agreed to stay a Sept. 10 decision.
Bill 31 would have had the same effect as Bill 5, cutting the number of Toronto city council wards to 25, down from 47 wards. But Bill 31 invokes the rarely used notwithstanding clause in s. 33 of the Canadian Charter of Rights and Freedoms to override eligible Charter protections. The judges wrote in the Court of Appeal decision on the stay that the proposed withdrawal of bill 31 played no role in the court’s outcome.
“I need to address the concern that there will be remaining uncertainty because the court won’t know which election to do,” Basu said at the hearing at Osgoode Hall in Toronto. “The court has to decide if the stay is warranted on the merits of this motion. But I can advise that if this court determines a stay, pending appeal, ought to be granted, and it grants a stay that will be in effect until at least the Oct. 22 election, the government will not bring bill 31 forward for a vote at this time, assuming that this motion is decided prior to the enactment of the bill.”
Lawyers arguing against the province’s motion for a stay were critical of Basu’s revelation about the withdrawal of Bill 31.
Howard Goldblatt, a Toronto lawyer at Goldblatt Partners LLP, who represented applicant members of Women Win TO, said it was an “affront” to raise the issue of bill 31 and the notwithstanding clause before the court.
Donald Eady, a partner at Paliare Roland Rosenberg Rothstein Barristers LLP, representing interveners, including city council candidates, said Basu’s comments about Bill 31 were “shocking” and “arrogant.”
“The government said today, ‘OK, if you grant the stay, we are going to pull the [notwithstanding clause],” said Selwyn Pieters, who made comments on behalf of applicant, lawyer and city council candidate Rocco Achampong. “Basically, what he is saying is, ‘Hey, if we don’t like your decision, if we don’t like what the court says, we are going to go ahead and do as we wish. If we like the court’s decisions, we will withdraw our legislation.'”
Basu said that the city clerk raised the issue of Bill 31 in expressing her difficulties organizing the election amid uncertainty. Basu offered several scenarios of outcomes of the court motion and, arguing that, if the court does not grant a stay of Belobaba’s decision, the court will face too much uncertainty amid challenges of Bill 31 and Bill 5. He added that the Crown had no meaningful opportunity to respond to expert evidence or the “lightning rod” issues of constitutionality amid an unsustainable schedule.
Belobaba overshot the remedy needed to address the issues of representation in the election, Basu said, and said the province could provide policy solutions such as a city hotline, compensation for campaign funds, more resources or even appointing two representatives per ward. He noted that companies complain “all the time” about wasted spending when the law changes but that a right to free speech doesn’t necessarily protect against speech becoming less worthwhile or effective.
Goldblatt told the court that the province’s argument was “somewhat ironic” given that the province caused the city clerk’s uncertainty by introducing Bill 5 and continuing to fight to cut the number of wards to 25.
“When you come to the court seeking the assistance of the court to prevent a harm, you ought not to have been the cause of that harm,” Goldblatt said.
Hoy and Sharpe questioned Goldblatt as to whether the government’s interference in the election — even if deemed unfair or disruptive to electoral strategy — rose to the level of being unconstitutional or prohibiting freedom of expression.
Eady and lawyer Diana Dimmer, representing the City of Toronto, argued that the onus was on the province to provide evidence to support the request for a stay and for cutting city council.
“We are talking about fundamentally upending and fundamentally altering the electoral process,” Goldblatt said. “Any child on a playground will tell you that changing the rules in the middle of the game is unfair, [but] that doesn’t mean it’s constitutionally wrong to do so. But I think that, [with] all due respect, you have to take a look at what the platform is in context. . . . Electoral strategy is part of their expressive right.”
In the decision granting the stay, the judges wrote that it does not follow that the Charter is violated by “government measures which do not prevent candidates from attempting to persuade voters, but have the effect of making those attempts less effective.”
“The decision of the Legislature to change it during the campaign was unexpected and perhaps alarming. But candidates have no constitutionally guaranteed right to the 47-ward platform, and Bill 5 does not deprive them of their constitutional right to say whatever they want to say about civic issues,” the judges wrote.
The judges also cited Belobaba’s decision that the province’s Bill 5 violated freedom of expression protections under s. 2(b) of the Charter.
“While rights can overlap and a limit on the scope of one right should not be used to narrow the scope of another right, it does not follow that doctrines pertaining to s. 3 can be imported to expand the reach of s. 2(b),” the Court of Appeal judges wrote.
In court, Basu cited case law indicating the city is a delegate of the provincial legislature, and the province can “whenever it pleases” destroy any agency it has created and set up another or take the matter directly into its own hands. He said the province is entitled to want to deal with a Toronto city council with 25 wards.
“Short of a Charter breach, the city is the legislature’s creature and it has the authority to remove or change the delegation at its pleasure, and there’s nothing wrong with that,” Basu said.
Editor's note: Story updated Sept. 20 to clarify comment attributed to Selwyn Peters.