Can Premier Doug Ford’s move to shrink council be stopped?

This is the question being considered in legal circles across the city in the face of what’s being called an “arbitrary” and “undemocratic” cut to the number of wards in Toronto — from 47 to 25.

When Ford’s government tabled Bill 5, the Better Local Government Act, on July 30, he did so without first making it part of his campaign platform ahead of the June election and without consultation with the city or its residents. In doing so, the Progressive Conservatives directly intervened in an election campaign that was already three months in.

Ahead of a special council meeting scheduled on Aug. 20 to discuss the city’s options, the Star looked at the potential legal challenges being considered behind the scenes by city staff, candidates and citizens groups and talked to legal experts and consulted legal precedents to to assess their chance of success.

It appears it would be difficult to see the legislation permanently struck down for this and all future elections, though several credible and creative arguments may, if a judge decides they are worth hearing out, push the changes off to a future election.

Here’s what’s being considered.

Does the legislation violate unwritten principles of the Constitution?

Experts say there are avenues that have been created in the last 20 years that were not available when several municipalities and a large group of citizens fought a similar, sudden change to the city’s makeup in 1997.

At that time, the legal challenge was against the PC government’s legislation that created the City of Toronto by amalgamating several municipalities. The challengers lost or were rejected at each level of court.

In the face of Ford’s proposed changes, two scholars at York University’s Osgoode Hall Law School have outlined their view that the legislation is an “affront to democracy,” as one, Craig Scott, wrote in an recent opinion piece in the Star, and that the arbitrary nature of the legislation, which effects only Toronto and was introduced in the middle of the election, leaves room for a legitimate constitutional challenge.

The unwritten principles, including democracy, were spelled out in a 1998 Supreme Court of Canada decision known as the secession reference. A reference case is when the government asks the court to rule on important legal questions. In this case, then-prime minister Jean Chrétien’s government asked the court to weigh in on whether Quebec had the right to unilaterally separate from the rest of the country.

Under the Constitution, the province has “exclusive legislative jurisdiction” over cities, Scott explained. Toronto is not afforded any outside power, which is why it is often said the city is a “creature of the province.”

But the unwritten principles underlying the Constitution, the Supreme Court wrote, create legal obligations — ones Scott wrote can apply to municipal governance.

These unwritten principles have been used successfully to argue for government decisions to be overturned, noted Bruce Ryder, an Osgoode professor, including saving the Montfort hospital, the only francophone teaching hospital in Ontario, on the grounds that its slated closure by the government violated the unwritten principle of the protection of minorities.

“I don’t think a court would dismiss the argument right away,” Ryder said of the constitutional principles. “We’re not claiming that the province can’t alter the municipality. I think it would be wrong to try to argue that. We’re just claiming that they have to do so in a way that’s respectful of democracy, including democracy at the municipal level, and they haven’t done it here by introducing this bill in mid-electoral process with no consultation.”

Does the proposed legislation violate charter rights?

As was the case during the fight against amalgamation, many have raised the argument that Bill 5 violates citizens’ charter rights, including those registered to run for office in the 47-ward system.

There are many different rights under the charter. Some, like section 3, which says “every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein,” do not apply to “municipal governance,” the courts have ruled. Experts say these types of challenges may be easily dismissed, because they have no reasonable prospect of success.

Other rights enshrined in the charter could form part of a credible case, and are being considered, including section 15 rights, which are meant to protect against discrimination. This charter right was also raised during the amalgamation fight, where it was argued that the increase in the number of constituents each representative would be responsible for would negatively impact disadvantaged groups and their access to decision-making.

The Court of Appeal found there was not sufficient evidence presented “beyond speculation” to find that section of the charter had been breached. But building a better, evidence-based case could produce a different, albeit difficult to achieve, outcome, experts said.

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Does the imposed structure of 25 wards provide effective representation for Toronto voters?

The city’s legal team raised the possibility there is an argument to be made about effective representation. But legal experts say this challenge would be highly unlikely to succeed.

The principle comes from a 1991 Supreme Court case involving riding boundaries in Saskatchewan. Like the secession decision, the Saskatchewan case was also a reference, looking at provincial riding boundaries. Toronto’s consultants who conducted a recent ward boundary review, used the case as a basis for the recommended and council-approved 47-ward structure that would be undone by the provincial legislation.

Effective representation, the court ruled, does not guarantee equal voting power — meaning there is no realistic expectation that there will be the exact same number of people in every ward or riding. The most important criteria of effective representation, the court said, was “relative” voter parity. The court outlined that deviations from perfect voter parity may be necessary for several reasons, including, the court ruled, to consider things like community history — such as not breaking up a neighbourhood like Regent Park.

Effective representation as defined by the court, is tied directly to section 3 of the charter, which speaks to federal and provincial elections but not municipal ones, with the court saying the “purpose” of that right to vote enshrined in that section is the “right to effective representation.”

Because of that, Osgoode’s Ryder said, the right to effective representation doesn’t exist in the municipal context and can’t be “the measure of the validity of Bill 5.”

Can a fair, legal election be run in the time allotted?

During a council debate shortly after Ford made his announcement, the city clerk, Ulli Watkiss, said it was “clear” that city staff “cannot run an election with a nomination day that ends of Sept. 14 and be ready to have an advance vote on Oct. 6,” noting she can’t print ballots or test the machines that read them in three weeks.

However, it’s believed if the city makes this argument, a solution that could be offered by the province is moving the election date back from Oct. 22 through regulation. Council is expected to hear more from staff about the logistical problems at the special meeting on Aug. 20.

Have candidates been harmed?

At least one legal challenge has been launched already by a councillor candidate, lawyer Rocco Achampong. A notice of application filed July 31 asked for an interim suspension of Bill 5, preventing it from coming into force, before his case can be heard. He argues “candidates, campaign workers, volunteers, election officials and staff, and the electors of the city of Toronto are all harmed” by the late-game changes and that the “risk of unfairness” or “perception of unfairness” could diminish public confidence in the democratic process.

Several candidates have noted that they have already received donations from members of the public, incurred campaign expenses, printed literature with ward numbers that may no longer exist and are in the middle of a campaign that may be restarted, causing ongoing uncertainty.

A judge must first decide whether to make the order to essentially pause the legislation before it comes into force, as Achampong has requested, and then hear his arguments on their merits. A date to hear the matter is expected to be scheduled next week.

Correction - Aug. 11, 2018: This article was edited from a previous version that said the city’s consultants found a 25-ward option achieved effective representation. In fact, the consultants concluded it did not achieve the criteria for effective representation.

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