'Crickets': Doug Ford says he will suspend Charter rights after court strikes down his 'hurriedly enacted' Toronto law

Ontario Premier Doug Ford announced Monday that his government would invoke rarely-used powers to suspend Canada’s Charter of Rights and Freedoms after a court tossed out legislation that would slash the size of Toronto’s city council in the middle of an election campaign.

The news conference came hours after an Ontario Superior Court judge struck down Bill 5, which would slash the size of Toronto’s city council, using a slang term for complete silence in his ruling. Opponents who successfully challenged the legislation argued that it was undemocratic and stifling their freedom of speech since the election campaign leading up to the Oct. 22 municipal vote was already underway.

Justice Edward Belobaba concluded in his ruling that the law violated the Charter, explaining that Ford’s government had said nothing in response to several critical questions about why the law was needed.

"If there was a concern about the large size of some of the city’s wards...why not deal with these six wards specifically?" Belobaba wrote in his ruling. "Why impose a solution...that is far worse, in terms of achieving effective representation, than the original problem? And, again, why do so in the middle of the city’s election?" he added.

"Crickets."

Ford, who repeatedly told reporters that he had the utmost respect for the courts, explained that he was entitled to implement the changes at Toronto city hall, since he was elected with a mandate to reduce the size of government. He also described the court ruling as "scary" and "disturbing."

"Democracy means, getting elected by the people," said Ford, in suggesting that the election of his government to power served as a justification to override the court ruling.

Ford's critics say he took most of Ontario by surprise by introducing the legislation, which only applies to changing the structure of Toronto, and not other municipalities in the province.

The section of the Constitution to be invoked by Ford is called the notwithstanding clause. It allows a provincial, territorial or federal government to temporarily suspend the Charter. It has never been used by Ontario, but has been previously used by the provincial and territorial governments of Quebec, Saskatchewan and Yukon.

Belobaba said Ford government 'crossed the line'

Ontario Attorney General Caroline Mulroney did not appear with Ford at the news conference, but the premier, accompanied by Municipal Affairs Minister Steve Clark, said his Progressive Conservative caucus was behind his decision.

"Our team is together on this," Ford said. "Our cabinet is 1,000 per cent behind this decision."

The premier said his government would convene an emergency session of the legislature to reintroduce legislation to impose the changes from Bill 5.

Ford dismissed concerns by reporters that invoking the notwithstanding clause was a disproportionate response to the court ruling. "Not at all, or I wouldn't be doing it," said the premier.

He also falsely accused the judge, who was federally appointed by the Liberal government of former prime minister Paul Martin, of being appointed by former premier Dalton McGuinty. And he appeared to provide conflicting statements in his news conference, at one point saying "virtually all" experts agreed with him, then later saying "all" experts agreed.

Ford had announced the legislation, the Better Local Government Act, on July 27, taking the city by surprise. The legislation, which became law Aug. 14, would align municipal ward boundaries with provincial and federal ridings, cutting the number of city wards from 47 to 25 mere months before the Oct. 22 municipal election.

Belobaba's Sept. 10 ruling quashed the legislation less than two months before voting day in Toronto, and nine days after an Aug. 31 hearing where dozens of lawyers and intervenors argued for nearly seven hours that it violated the Canadian Charter of Rights and Freedoms.

It does not affect the cancellation of regional chair elections, another aspect of the bill.

The judge acknowledged the importance of judges exercising restraint when considering whether to quash duly enacted legislation. "It is only when a democratically-elected government has clearly crossed the line that the 'judicial umpire' should intervene," he wrote. "The province has clearly crossed the line."

'We win'

The ruling initially prompted some celebration.

"We win!" tweeted Rocco Achampong‏, candidate for Ward 13 Eglinton-Lawrence and Bill 5 intervenor.

Gavin Magrath, a lawyer representing Achampong, told National Observer Belobaba didn’t say anything "revolutionary” when it came to Charter rights. In the context of Tesla's recent successful legal challenge, he said, "I would say that [Ford] is running into these obstacles frequently and rapidly."

“It's the cost of governing by bullshit. If you make up mischief and then urgently pass laws to resolve the mischief that you invented, you're going to wind up covered in mud.”

Don Eady, a lawyer representing several candidates, electors and community groups in this case called it “a good solid decision by a good judge.”

“Courts will always step in when governments overstep their bounds or don’t do what they’re supposed to do,” he said. “This is entirely consistent with what judges do.”

Canadian Taxpayers Federation federal director Aaron Wudrick said the group was "disappointed" with the decision, arguing that the bill was introduced with sufficient time, and disagreeing that the 25-ward system would undermine voter's rights.

"When these decisions come, they can set a precedent," Wudrick told National Observer in a phone interview, "and regardless of how we feel about the decision in front of us, that precedent can matter to a whole bunch of other things."

He said the ruling represented a "danger" that the Ontario government can't make changes to municipalities.

"They can do whatever they want. And so I think people need to be careful in saying I might like this particular outcome, but if it has an impact on the ability of governments to do things down the road, it goes a lot farther than just this one particular case."

Both Ford and Clark, his municipal affairs minister, have previously said the new legislation would create a more "streamlined" local government that aligns the number of municipal wards with the number and configuration of the current 25 provincial and federal electoral districts in the city.

They had argued this would reduce what they considered "dysfunction" at Toronto City Hall.

'The matter before me is unprecedented'

The enactment of legislation that radically changes the number and size of a city’s electoral districts in the middle of the city’s election “is without parallel in Canadian history,” wrote Belobaba, in his short and blunt decision released Monday morning. He noted too that “the matter before (him) is unprecedented.”

By finding that Bill 5 was “unconstitutional,” Belobaba declared “the October 22 election shall proceed as scheduled,” and “until a constitutionally valid provincial law says otherwise – the City has 47 wards.”

"It appears that Bill 5 was hurriedly enacted to take effect in the middle of the city’s election without much thought at all, more out of pique than principle," he wrote.

While the province has broad jurisdiction to enact laws in relation to municipalities, Bill 5 had two constitutional deficiencies, wrote Belobaba, related to the bill's timing and its impact on candidates.

Because Bill 5 was enacted in the middle of an ongoing election campaign, Belobaba said it breached candidates' freedom of expression, and caused disruption to candidates who had decided to invest money and time in running for city council, which “undermined an otherwise fair and equitable election process.”

As well, Bill 5 “almost doubled the population size of city wards from an average of 61,000 to an average of 111,000,” which breached the Toronto’s voter’s right for effective representation.

Belobaba referenced the four-year Toronto Ward Boundary Review process that concluded in 2017, which found a 47-ward system would best allow effective representation. As the review noted, if a 25-ward system was adopted, as mandated in the legislation, city councillors couldn't respond effectively to constituents, Belobaba wrote.

'You're not the King of Ontario'

Several of Ford's political adversaries swiftly condemned his response.

"It is completely unacceptable to suspend the Canadian Charter of Rights and Freedoms in pursuit of old political grudges,” said Jennifer Keesmaat, a mayoral candidate and former chief city planner in Toronto. “And that is what this is about. Premier Ford did not campaign on this issue. He has no democratic mandate to do this. And it is a disgrace to suspend the Charter on this or any other issue."
“We need to fight this suspension of the Charter vigorously, and with every legal means,” she said. “And every Ontarian needs to understand how egregious and over the line this conduct is.”

Ontario NDP leader Andrea Horwath said she was "astounded." An independent judiciary and a free media, she noted, "exists to protect people from politicians who believe an electoral majority is a mandate to trample on people's rights."

"You're not the King of Ontario, Mr. Ford," she said, and promised to fight Ford's "ham-fisted" move to invoke the notwithstanding clause.

“Doug Ford is literally suspending the Charter of Rights for Ontario’s people in order to plough ahead with his revenge plot against his political enemies at Toronto City Hall,” Horwath said. “He trampled on people’s Charter Rights with Bill 5. That is a fact.”
Green Leader Mike Schreiner also released a statement saying he was "shocked and disappointed" at how far Ford was going with a "personal vendetta" against Toronto.

"Invoking the notwithstanding clause is unprecedented in Ontario," Schreiner said. "It should not be used for political gain or to win petty fights with municipal government. This is a dangerous sign of what this government is willing to do."

Provincial Liberals also echoed those comments, expressing concerns about how the unfolding response would interfere with the elections, while urging Ford to drop his legislation.

"We're in a stage now that we're even more confused," said Liberal MPP Michael Couteau. "It chips away at our credibility as a province... the premier and his government need to rethink their strategy when it comes to making big changes like this...they say they're for the people but they never consulted the people."

Tory asked about notwithstanding clause

Belobaba’s decision is the second court ruling relating to a Ford government decision.

In August, an Ontario judge ruled to strike down a government plan to end rebates for buyers of Tesla electric vehicles. The Ford government subsequently said those buyers would be eligible for rebates if their vehicles had been delivered and registered by Sept. 10.

Speaking earlier in the day, Toronto Mayor John Tory welcomed the judge's ruling, saying in remarks Monday to reporters that "you can't change the rules in the middle of the game."

Tory also said it would be delicate for Ford to use the notwithstanding clause, which is section 33 of the Charter.

"I would really have to ask myself the question, and I think a lot of people would be asking themselves the question...why is it so important to proceed in a rush to do that, if you have to make any changes at all, and use the ultimate provision of the Constitution that actually overrides people’s Charter rights?" he said.

"I think the people of Toronto and the people of Canada hold their Charter rights very dear, I think they understand the importance of those rights within the context of how we live here and our democratic system, and the notwithstanding clause was put there for very extraordinary circumstances."

'Vigilantly watching and waiting'

In an interview with Global News Radio 640, Keesmat also derided Tory for "allowing this to proceed” and not making it clear from the outset that Ford’s decision to single out Toronto’s democratic rights in this way was “not acceptable.”

“Today is a victory for those who fought across the city in churches in town hall,” she said, before Ford's news conference. “It’s a victory for those residents who immediately stood up for the city...if there’s a change that’s required, you don’t do that in the middle of an election."

Nick Tsergas, the lead organizer of the #ResistFord movement, which has gathered 200-300 council candidates to seek possible legal challenges, said the movement is “very happy that today the court decided election interference is, in fact, illegal.”

Tsergas said he will be “vigilantly watching and waiting” on the Ford government’s response to the ruling and what comes next.

“There might be another conversation about whether the muddying of the waters that took place throughout this entire process constitutes as election interference and whether candidates have a case," he said, before Ford's news conference. "But for now, the candidates are relieved."

- with files from Steph Wechsler and Carl Meyer

Editor's note: This article was updated at 3:40 p.m. ET on Sept. 10, 2018 to include fresh comments from Premier Doug Ford and reaction from others. It was updated again at 5:00 p.m. with additional reaction.