The city is asking the country’s top court to overturn a decision that Premier Doug Ford’s mid-election council cut was constitutional.

In applying to the Supreme Court of Canada — which chooses to hear a select number of cases each year, typically of significant public and usually national importance — the city says the issues raised by the provincial government’s meddling in the election “transcend the specific election in this case and can affect any election in the country.”

“This appeal raises three issues of national and public importance relating to local democracy as well as broad, important constitutional interpretation issues that require further jurisprudential guidance from this Court,” the city’s application, filed Friday, says.

“The intervention of this Court is necessary to bring clarity to these constitutional issues of public importance.”

The application outlines how the province, without notice, passed legislation that cut the number of city wards in Toronto from 47 to 25 during the 2018 election. On the day it became law, the municipal campaign had been running for 105 days with 69 days before the vote.

“The result was widespread disruption and confusion,” the city’s legal team — comprising Diana Dimmer, Glenn Chu, Fred Fischer and Philip Chan — says in its written application.

It goes on to describe the fallout:

“Candidates had campaigned in areas that were no longer part of their ward and had never campaigned in areas that were now part of their ward; ward sizes approximately doubled; electors were no longer sure what ward they were in or who was a candidate in their ward; endorsements that had been provided for candidates were rescinded; people who did not run when it was a 47-ward election decided to enter the race when it became a 25-ward election; the Clerk, who was preparing for months for a 47-ward election, had to suddenly begin preparing for a 25-ward election; candidates spent more time speaking to electors about the reduction in the number of wards than election issues.”

The legal case first launched by a group of candidates, volunteers and voters, has been working its way through the courts for months.

In September 2018, Superior Court Justice Edward Belobaba ruled that Bill 5, the Better Local Government Act, was unconstitutional and struck it down.

The province then appealed. First, the Court of Appeal granted a stay, which effectively put Belobaba’s decision on hold and saw an election proceed in October with the 25-ward structure now in place. A rare five-judge panel at the Court of Appeal then ultimately overturned that lower court decision in favour of the province. But the panel was split on that decision, 3 to 2.

The city’s application to the Supreme Court outlines three central issues: whether the charter protects the expression of people participating in an election from “substantial mid-election changes” to the electoral framework in place; whether what’s called the unwritten constitutional principles of democracy and rule of law can be used to strike down legislation; and whether municipal voters are entitled to effective representation.

On the first issue, the city’s application notes that the Court of Appeal panel was split on mid-election interference as it relates to section 2(b) of the charter, which protects freedom of expression, and that the appeal to the Supreme Court would allow that court to provide guidance for all municipalities going forward. Expressive rights are wielded by many people in an election, the city wrote: candidates seeking support, donors providing financial support, volunteers working on campaigns, and electors casting their ballots.

“The ability of electoral participants to engage in political speech during an election, and participate in the democratic political discourse it engenders, depends on the stability and unchanging nature of the electoral framework in which it takes place,” the city argues. “Once an election begins, any material change to that framework interferes with the ability of electoral participants to express themselves and to engage in the political discourse that is central to any democratic election.”

When it comes to the unwritten principles — concepts underlying the constitution, as spelled out in an 1998 Supreme Court decision, including the principle of democracy — the city’s lawyers argue that the Court of Appeal’s conclusion those principles cannot invalidate legislation is at odds with rulings of the Supreme Court as well as the British Columbia Court of Appeal. The city asks the higher court to clarify what powers those principles have to overturn legislation on their own.

And thirdly, the city says the Supreme Court has not commented on municipal voters and their right to effective representation — another concept acknowledged by the Supreme Court that includes the concept that all votes should have equal weight.

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“Given the importance of municipalities in the everyday lives of Canadians, it is of public importance for the court to clarify whether voters in municipal democratic elections are also entitled to effective representation,” the city’s application says.

Council directed the city’s legal team to pursue an appeal to the Supreme Court if necessary. The city is not looking to have its costs reimbursed by the province, noting the “public nature of this case.”

A statement Friday from Attorney General Doug Downey’s office said they remain “pleased” with the earlier decision of the Court of Appeal and said it would be “inappropriate to comment further” with the matter again before the courts.

It is difficult to get a case heard at the Supreme Court. The court’s website says of the 600 applications submitted every year, only about 80 are granted — just over 13 per cent.

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