Toronto: Ford's Turmoil Notwithstanding . . .

In politics, if you want to make a change you have to be ruthless. That doesn't mean you have to make a practice of cruelty or listen for the screams as a way of checking the effectiveness of your initiatives, but to make changes from established practice it is better not to dither, not to muddle through.

Amputation is better done with a scalpel than by simply twisting the diseased member back and forth until it finally drops off.

Doug Ford's determination to reduce the size of Toronto's City Council has led to a court challenge which ruled his initiative to be in violation of Canada's Charter of Rights and Freedoms. The Charter has included in it what is known as the "notwithstanding clause" which is an escape hatch allowing the federal government and the provincial governments to overrule a Charter based challenge to legislation and to proceed with whatever legislative initiative they insist upon pursuing.

It is a way for elected governments at the provincial and federal level to pull rank on the courts, and do what they want to do. The Ford government has chosen to invoke the "notwithstanding clause" and reintroduce the legislation that was successfully challenged in the courts. Doing so is ruthless, but it is a legal option for them.

That's the law in Canada. Elected legislative bodies at the provincial and federal level are supreme. The courts in Canada are not a "check and balance" in the same way that they are in the United States. They are not a "coequal" branch of the government.

The initiative by the Ford government in Ontario to reduce the size of Tornto City Council has run into a lot of flack. The objections can be divided along two main lines.

There is opposition to the notion of reducing the size of City Council and there is opposition to the process by which the intiative is being carried out.

Mayor Tory objects to both the idea of reducing city council and to the process. I don't want to discuss the idea in itself. I really don't know whether a smaller council is a good idea or not. Doug Ford believes that a smaller council will be more efficient and will save taxpayer money. He has been a city councillor and thinks that council is laughably inefficient. He likened it to a situation comedy on television.

Mayor Tory and others believe that the council needs to be the size it is to give adequate representation to Toronto's citizens in the various wards, across a large and populous city that presents different problems and challenges in each neighborhood.

Which view of council should prevail is a matter of judgment. That's what politics are about.

Process is where Doug Ford is running into his most energetic and vehement opposition.

A wide variety of people in the city and province as a whole are upset at the way this initiative, reducing the size of city council in Toronto, has been handled. They feel, quite rightly, that it has been sprung on them. They object that it is occurring in the middle of an election campaign for city council. They don't like the idea that it was not mentioned during the provincial election that brought the Conservative Party, led by Doug Ford, into power, which means that the merits of the initiative have never been given a public airing in a meaningful way.

This quite significant initiative has never been voted on, except in the Conservative dominated legislature.

The optics of Premier Ford's démarche on the size of council are terrible, granted, but it is hard to say what would have been a better time, or, in strategic terms, way to do it.

If it had been done during the provincial election, and been one of the planks in the Conservative Party platform, it would have presented difficult complications to Ford. How to explain that the initiative only applied to Toronto, and not to all municipalities in Ontario? I'm not saying that couldn't be explained, but it would have added drag and not lift to the Ford electoral flight.

If the initiative had been presented after the elections for City Council in Toronto, it would have brought howls of outrage at what would look like a massive muddle precipitated by Ford, essentially backtracking on a recently completed electoral process.

There simply was no good time to do this thing, in political terms, but this is where ruthlessness comes into it. The notwithstanding clause had to be invoked in order for the government to retain its legitimate right to control the legislative agenda in the province, and to avoid the appearance of being a blundering bunch who didn't know how to do anything.

Not making this change an issue in the provincial election looks sneaky, but there is no doubt that it would have been a major distraction over something that I don't really think is a major issue for Ontarians as a whole, reducing the size of Toronto's city council. I think Doug Ford sees this more as "government business", not the revision of Mosaic Law.

a reply to: ipsedixit

Well written take on the matter. Sorry, but I am unable to flag for some reason.

I think it’s better to impose the notwithstanding clause on relatively benign matters, such as Toronto city council. Every now and then the judiciary should be reminded who holds the keys. Then again, I believe the city and not the province should make that call.

a reply to: Aphorism

Another strategic consideration is that this way, springing the idea on people and then using the notwithstanding clause to make sure it survives a court challenge, is that, this way, the idea gets a tryout. We will have an opportunity to try a smaller city council and see if it works.

From that point of view, Ford could not have done it any other way, although he still could have come into power in the province had that been a campaign issue for him, but it would have been potentially very troublesome.

I think he had to do what he did. Politically speaking, the court challenge, the successful court challenge, left him only one politically viable option, the notwithstanding clause. Accepting the rebuke of the court would have crippled him politically for the rest of his term and would have been almost certainly fatal in the next election. He may still lose the next election, but if reducing city council in Toronto turns out to be a success, the gambit with the notwithstanding clause will look like a great move.

Yesterday, a Liberal Party member of the legislature, Liberal MPP Nathalie Des Rosiers, one of the three co-editors of the 1,168-page Oxford Handbook of the Canadian Constitution, made remarks on the legality of what has been proposed.

This is what she said, as reported by the Toronto Star:

www.thestar.com...

Des Rosiers said later that “there are arguments that it’s the wrong use of the notwithstanding clause because of the retroactive aspect of it.” The Supreme Court has ruled that the clause cannot be used retroactively — in this case, by changing nomination dates, she said.

Beyond that, she said the Conservative government could end up having to effectively run the city if the legislation passes, 25 councillors are elected, and then the province loses at the Court of Appeal or in the Supreme Court.

“You could say it’s (sitting) illegally and therefore we would have to pass more statutes to ensure the legality of it,” said the Ottawa-Vanier MPP, noting residents could even challenge having to pay property tax increases approved by an “illegitimate city council.”

“The legislature would have to come back to validate whatever actions city council would have made and that would create further chaos.”

Despite the evocation of "chaos" by the member, the objections she cites to the government legislation are the sort of things that could be navigated around in one way or the other.

Council, in an affirmation of Doug Ford's estimation of its efficiency, are saying that they will take their fight to the Supreme Court if necessary, to which I say, by all means, and don't worry about the costs involved. It's on me (us).

O I hope he get that useless council cut, ever since Tory been elected, there have been more blatant shootings then ever since he removed TAVIS and carding reducing the effectiveness of policing.

And he blame legal guns an owners for the mess an is trying to ban them which your aware of, all the while most guns used in the crimes are more then likely illegal and used by those that don't have any legal right to have one.

Even though illegal guns have been a problem for years.

Besides, for example L.A has a pop 30 million and it 15 member council is half the size of T.O which is 25, with a pop of just barely 3 mill.

Two birds with one stone, beside no body threw any protest or cry of democracy when I got laid off. If anything they should try to fight for their severance cause they are going to need with their skill level an no body really cares about them and their highway robbery taxes an crap on a decaying city.

And beside the charter of right an freedom is pretty void due to the fact that up to any big shot that decides what valid or not.

i didn't believe you on the size of LA City Council, but you are right on.

www.lacity.org...

Toronto's City Council is currently 44 members, though, and was due to expand by three more to make it 47. Ford wants to reduce it to 25.

The gun thing is a whole other issue, but I think the real problem is in sentencing of offenders. Possession of an unlicensed handgun should bring an automatic five years in jail with no parole no matter what you were doing with it. Use of a firearm, licensed or not, in commission of a crime should be an automatic ten years in jail with no parole, even if you did not discharge the weapon or take it out of your pocket/holster. Non fatal discharge of a fire arm in the commission of a crime should get you twenty years in jail with no possibility of parole. Fatal use of a firearm in the commission of a crime should net life (not "life lite", or 25 years, but real life until you die) in prison with no possibility of parole.

The reasons for not doing this are partly sociological and political, related to ethnicity. I could go further into this with some pretty educated guesses but it's really off the current topic.

Nice catch on the LA council though.

Canada's population is 36.3 million people. There are 338 members of Parliament. That means that Canadians are represented by one member of parliament for every 107,396 citizens.

Toronto's population is 2.8 million people. There are currently 44 city councilors. Current representation on City Council is one city councilor for every 64,000 citizens.

If the number of city councilors were reduced to 25, as the Ford government wants to do, Torontonians would be represented by one city councilor for every 112,000 citizens, which is very close to the number for national representation in parliament.

If Doug Ford's government had decided to reduce the number of city councilors to 26 instead of 25, there would be one city councilor for every 107,692 Torontonians, which is virtually the same rate of representation as in the national parliament.

I don't think this fuss is really about democracy, at least as it relates to adequate representation. One could argue that Torontonians are currently overrepresented on City Council, by comparison to their representation in Parliament.

Could it actually be all about jobs, jobs, jobs on City Council? I think so.

It is interesting to note that Toronto is represented by 23 federal MPs and 22 provincial MPPs. Even after Ford's cuts to council, Torontonians would still have more representation on Toronto City Council than they do in the national or provincial parliaments.

On a lighter note, certain venerable graybeards of Canadian politics have risen from their living room coffins to straighten out Doug Ford on the etiquette of the use of the "notwithstanding clause" attached to the Charter of Rights and Freedoms, which some of them were involved in drafting.

www.theglobeandmail.com...

Former prime minister Jean Chrétien, former Saskatchewan premier Roy Romanow and former Ontario attorney-general Roy McMurtry issued a statement Friday afternoon saying the clause wasn’t meant to be used to circumvent proper process. Rather, they wrote, the clause was designed to be used in “exceptional situations, and only as a last resort after careful consideration.”

"We condemn his actions and call on those in his cabinet and caucus to stand up to him,” they said. “History will judge them by their silence.”

They don't, at least not in this article, specify what "exceptional circumstances" would lead to the invocation of the notwithstanding clause by an Ontario Premier.

Most of the trampling of human rights done by the law enforcement agencies doesn't involve invoking the notwithstanding clause. They just do what they want to do and let the courts sort it out. We are a level above that. If the police arrested Adolf Hitler in Toronto and the courts decided that the police had violated the Charter of Rights and Freedoms when they brought him in, the Premier, realizing the gravity of the situation, could use the notwithstanding clause to set the court decision aside and keep Hitler in custody. Presumably that is what Romanow and the others had in mind when they drafted the clause.

A court which prevented the provincial government from exercising its authority over the government of the City of Toronto and permitted via a Charter Challenge, continued frittering away of time and resources, by Toronto City Council, must not be overruled by use of the notwithstanding clause, according to the graybeards of constitutional politics and law.

That sort of thing should be reserved for Hitler's arrest or if Ontario declared war on Buffalo or if aliens landed at Queen's Park.

I'm not buying it. The alternative to the use of "the clause" is a very long political dogfight about kicking feather bedders and primadonnas, who are all favorites in their wards, off council. it's too expensive.

The notwithstanding clause should be used for this kind of really dubious inter level government squabbling. It restores order and terminates disorder. Of course its use is rare and the circumstances must be exceptional, like now.