Premier Doug Ford is set to use the notwithstanding clause after Superior Court Justice Judge Edward Belobaba rules that reduction of councilors during election period violates the Charter of Rights and Freedom.
According to the Legislative Assembly of Ontario, the Efficient Local Government Act states the City of Toronto’s wards and number of councilors will be reduced before the municipal election on October 22.
Matthew Hennigar, associate professor of the political science department, clarifies, “[Ford] practically said, ‘I’m not going to accept that ruling and I’m invoking the notwithstanding clause that can be used in freedom of expression’,”
The notwithstanding clause can be found in Section 33 of the charter and it specifically states:
“(1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15.
(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.
(3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.
(4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1).
(5) Subsection (3) applies in respect of a re-enactment made under subsection (4).”
Hennigar explains, Ford is legally entitled to do what he did but that doesn’t mean he considers it to be fair.
In the constitution, individuals can also find in Section 3,
“(3) Every citizen of Canada has the right to vote in an election of the members of the House of Commons or of a legislative assembly and to be qualified for membership therein.”
This refers to “the provincial legislature or a federal parliament which municipal council is not,” Hennigar said. “So, there is a reason why he couldn’t use that.” He continued, “You can’t override that section.”
Hennigar emphasizes “…because it’s freedom of speech [Ford] can override [it] and has the power to do so.”
“[However], it suspends the charters application to that law for five years,” Hennigar said.. “It can be renewed in five years but otherwise it will automatically expire.”
For Hennigar, Ford is targeting specifically the City of Toronto.
“It does seem personal… why are you not looking at every council,” Hennigar says. “Like Ottawa’s council is very large.” He continues, “And generally, the rules are, we want to see government even-handed in its treatment. You might not agree with what they’re doing but at least be even-handed about it.”
Associate professor of the political science department, Tim Heinmiller says, “The justification is that it will make the government more efficient and it will save money, [However], I personally thinks it’s problematic”.
Professor Hennigar adds [that] “the biggest problem will be the lack of representation.”
“When you reduce the numbers of councilors, it means every councilor has to represent more people,” Heinmiller says. “Less is going to be less responsive councilors.”
“One councilor for every 110,000 people which is about the same for provincial and federal,” Heinmiller says. “But local government is different because it deals a lot with constituent issues, so complaints.
Constituent work is really important, it’s time consuming and if councilors have to look after more constituents, it creates challenges.”
The province will be saving some money, however, Hennigar says: “If it will save $25 million, again I’m not sure, I’m a little dubious but that seems like a large number for the cuts being made. And again, what’s the value of money and that’s sort of a hard question to answer.”
Hennigar explains he isn’t quite sure if the cuts will be helpful at all. Then concludes, “Maybe, I don’t know.”