Premier Doug Ford has triggered the nuclear option in his battle to slash Toronto city council.

Ford took the unprecedented step Monday of invoking the “notwithstanding” clause of the Charter of Rights and Freedoms to override a court ruling that it was unconstitutional for him to cut the number of councillors from 47 to 25 in the middle of the municipal election.

The rookie premier, sworn in on June 29, said the Progressive Conservative government would appeal Superior Court Justice Edward Belobaba’s decision.

But with the urgency of a looming Oct. 22 city election, Ford is also recalling the legislature on Wednesday to invoke Section 33 of the Constitution and ensure passage of the Better Local Government Act.

“I was elected. The judge was appointed. He was appointed by one person, (former Liberal premier) Dalton McGuinty,” the premier said, though his aides later clarified that Belobaba was in fact named by former prime minister Paul Martin because Superior Court justices are federal appointments.

“A democratically elected government, trying to be shut down by the courts — that concerns me more than anything,” he said, adding the courts have made him feel like “I’m sitting here handcuffed, with a piece of tape over my mouth, watching what I say.”

Striking a partisan tone, he said the biggest opponents of his reducing council “just so happen to be downtown, NDP, far-left councillors” more interested in protecting their own jobs.

Ford, who never once mentioned cutting Toronto council during the spring election campaign, also warned that he “won’t be shy” about invoking the notwithstanding again if the courts get in his way, though he did not elaborate.

The clause, which is found in Section 33 of the Charter, was intended to give Ottawa or the provinces a mechanism to overrule Charter rights that conflict with their legislative agenda.

He made his announcement at 2 p.m., two hours later than planned as his officials scrambled to prepare a strategy for dealing with the stunning 8 a.m. court ruling.

Belobaba said Bill 5 infringed Charter rights and deemed it unconstitutional.

The judge called that move “unprecedented” and ruled it “substantially interfered with both the candidate’s and the voter’s right to freedom of expression” guaranteed by the Charter.

In doing so, he ordered the election continue on the basis of 47 wards, returning the campaign to a state before Bill 5 was tabled at Queen’s Park.

47 wards vs. 25

“It is only when democratically elected government has clearly crossed the line that the ‘judicial umpire’ should intervene,” Belobaba wrote in his 21-page decision.

“The province has clearly crossed the line.”

His decision has no effect on Bill 5’s cancelling of regional chair elections in Peel, York, Niagara, and Muskoka.

After the judgment was released, the city clerk began preparing an election for Oct. 22, as scheduled, under a 47-ward model.

Candidates would be those certified as of July 30 — 509 candidates for council and school boards.

But that would fall by the wayside if the reintroduced legislation is enacted later this month as expected.

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In his decision, Belobaba blasted the province for failing to justify the cut to council, saying it submitted little evidence to support a hastily prepared argument that the legislation would result in more effective representation or that it would make council more efficient and save money.

“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.

“As things now stand — and until a constitutionally valid provincial law says otherwise — the city has 47 wards.”

Belobaba said Ford’s bill violated candidates’ Charter rights in the middle of the election and that voters’ rights were breached because larger wards lead to worse representation.

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For candidates, the 47-ward structure set out at the start of the election period on May 1 “informed their decision about where to run, what to say, how to raise money and how to publicize their views.”

On voters’ rights, the judge noted the unique nature of local government and its close relationship to residents.

“The evidence before this court supports the conclusion that if the 25 (federal electoral districts) option was adopted, city councillors would not have the capacity to respond in a timely fashion to the ‘grievances and concerns’ of their constituents,” Belobaba wrote.

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NDP Leader Andrea Horwath reminded Ford that “you are not the king of Toronto” and blasted the premier for being “ham-fisted.”

“Doug Ford is literally suspending the Charter of Rights of Ontario people in order to plow ahead with his revenge plot against his political enemies at Toronto city hall,” said Horwath.

Interim Liberal Leader John Fraser implored Ford to rethink his scheme, stressing “chaos and constitutional mayhem are not good for Ontario: this creates uncertainty and undermines the importance of democratic rights.”

Before Ford’s gambit, Mayor John Tory told reporters at city hall he welcomed the court ruling.

“We have stood up for Toronto and for our rights as a city … I firmly believe you don’t change the rules in the middle of an election campaign,” Tory said. “It isn’t fair, it isn’t right and it raises the question — what’s the rush?”

Later Monday, the mayor said Ford was making “a mistake … to use an oversized hammer to abridge the Charter of Rights and Freedoms of our country as if this is a “some sort of national emergency.”

He urged Conservative MPPs to vote against the premier in what Ford insisted would be “a free vote.”

“The notwithstanding clause was put there for very extraordinary circumstances,” Tory said.

While Ontario has never invoked it, Quebec has — as have Saskatchewan and Alberta.

Belobaba’s decision came nine days after an Aug. 31 hearing where lawyers for the city and those representing groups of candidates, volunteers and community groups challenged the legislation on the grounds it was unconstitutional and violated Charter rights.

The judge had earlier promised to make speedy work of his ruling with the election looming. Nominations for council and school board trustee candidates in a 25-ward race were set to close Sept. 14.

Advance polling, which has already been reduced to five days, is set to begin in just a month on Oct. 10. Council earlier instructed city lawyers to seek a postponement of the election if required.

The Court of Appeal would first have to agree to hear the case and then a hearing date would need to be set. Provincial lawyers could ask for a “stay” on Belobaba’s decision, meaning it would have no effect until the appeal could be heard.

Ford, who was a one-term Toronto councillor in his brother Rob Ford’s administration, announced Bill 5 without warning on July 27. It became law Aug. 14.

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Lawyers for the city and others called the interference unprecedented and undemocratic, claiming the arbitrary and discriminatory move created a cloud over the upcoming election. It also infringed on the rights to freedom of expression, association and equality, some legal teams argued.

The province responded that the city had no constitutional status and was simply a “creature of the province,” which had the power to change the election process, their lawyers argued, for the better.

With files from David Rider, Kristin Rushowy, Jacques Gallant and May Warren

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