By Dr. Radhakrishnan Persaud
The Ontario government’s introduction of legislation on Monday to reduce the number of councilors in Toronto’s city council to 25 from 47 is not unconstitutional. However, the government’s unilateral approach to altering the structure of representation in Canada’s largest city is unconventional and has engendered much criticism from opposition parties in the Legislature and from Toronto’s political leaders.
The government’s decision has also engendered much discussion and debate. The significant questions raised by this action are whether the legislative action represents an improvement in the City of Toronto’s governance structure and whether this action represents a serious abridgement of democratic legitimacy.
Toronto’s mayor, John Tory, and others are considering legal action against the Ford government over the timing and process of its decision to slash the number of Toronto’s councilors. For Tory and opposition leader, Andrea Howarth, the government’s decision to introduce legislation to reduce the size of council does not meet established parliamentary norms of consultation, discussion and debate.
Whatever legal challenges may be made to the Ford government’s decision, the fact is that provincial Legislatures in our federal system –division of powers– are entrusted with responsibility for the structures of local government in Canada. Specifically, Section 92 of the Constitution Act, 1867, which deals with exclusive powers of the provincial legislatures, gives the provincial governments powers to make laws for “municipal institutions” in the provinces. Section 92 of the Act also gives the provincial legislatures the power to make laws for “all matters of a merely local or private nature in the Province”. So, broadly speaking, in considering the current legislation, Premier Ford and his government are not acting unconstitutionally.
In terms of legality, in pure law, the provincial government is the author of the City of Toronto Act and thus has authority to amend that Act as it deems necessary and appropriate — from time to time. The Act does not, however, mean that the Provincial government is without constraints or can act in isolation of the policy needs of the municipalities.
It seems to me that even if Mayor Tory challenges the process of Ford’s legislation, his legal team would have to argue that it is contrary to Section 3 of the Charter of Rights which deals with democratic rights of Canadians. Section 3 of the Charter states that “Every citizen in 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”. Adopting the Supreme Court of Canada’s theory of constitutional architecture, this protection may be extended to protecting the voting processes for local governments. Clearly, though, this would be an interpretive stretch. Such a legal action would require an application for an injunction against implementation of the new Act based on its interference with an established democratic structure. However, the success of a Charter claim based on Section 3 seems a remote possibility.
ISSUES/QUESTIONS ABOUT THE DEMOCRATIC CHARACTER OF THE PROCESS
The question arises whether the government’s actions in this instance are democratic or undemocratic. It could be argued that the Ford government’s actions here are undemocratic because democracy implies a certain level of truthfulness—honesty and fair play—which are absent in the current process.
A number of factors may be considered respecting the democratic character, or political correctness, of the government’s announcement and legislation.
First, Premier Ford’s decision to be silent about his intensions to reduce council during the election campaign, though strategic, renders somewhat troubling his post electoral victory announcement and legislation. Ford was no doubt cognizant of the effects that such an announcement would have during the election campaign. While public knowledge of this intention may have precluded his electoral victory or reduced the PC’s seats in the legislature, Ford could have signaled this move during the election campaign. In justice to the Premier, however, he maintains that less government, cost savings and efficiency characterized his electoral campaign promises. But efficiency is one thing and adequate representation is another.
Toronto is a large city with many distinct and diverse communities which require effective representation. Moreover, the government’s legislation raises questions about conceptions of our parliamentary democracy. The constitution defines our democratic arrangements so that the people of Ontario through their elected provincial legislature can organize, control, regulate and limit cities. But this must be done in accordance with Toronto’s growth and development as a major city in the country and its role in the international arena. The province needs to respect Toronto for what it is: a complex and important community that needs to be as self determining as it can be without interrupting the interests of the rest of the province. Having said that, it is not at all clear at this time that a reduction of councilors in a realignment of the wards with federal and provincial boundaries (constituencies) will result in less representation in city council. It is also not clear that a reduction of seats on council will result in less effective local government management and oversight functions of Agencies, Boards and Commissions.
Second, changing the rules in the middle of the game was a political manouvre which may be questioned prudentially. Some may argue that the government’s decision is not a prudent one because it is not well reasoned and well thought out and that its rationale and motivation for the reduction may be primarily ideological. This raises the question: what values predominate in the Ford government’s decision to cut city council. Does the Premier actually view Toronto’s city council as a politically subsidiary agency of the Ontario government without independent role, significance and legitimacy? While answers to these questions may be premature, the ideological values of this new government will no doubt present themselves more fully over the next few years. Having said that, Ontario’s national and international reputation and significance depends on the character and reputation of Toronto as an economic and cultural centre; it very significantly depends on Toronto’s effectiveness as an efficiently governed political entity. While the PC’s under Ford won a majority government to develop and enact a legislative agenda, it ought to be mindful of the role of the city of Toronto as the major engine of the province (indeed nation) and the relative autonomy of this local government in our intergovernmental relations and federal structure.
Third, a referendum on the government’s legislation seems unnecessary given the recent majority win of the PCs under Ford. Moreover, even if a referendum were to be held on the legislation, the government’s majority status means that they could ignore any referendum results on proposed or enacted legislation as former Premier Mike Harris did in 1998 when megacity was created. As Richard Tindal and Susan Tindal have stated, “[t]here was strong opposition to the creation of Megacity, with a large majority voting against it in referenda held in all six of the lower tier municipalities. But the province pushed ahead and effective January 1, 1998, the area previously under a two-tier metropolitan government system became one municipality…”
Although the Ontario government’s legislation to reduce the size of Toronto’s city council is within the province’s constitutional authority, the process or approach to exercising its power with respect to local government restructuring seems disorderly. But to be disorderly is not necessarily to be illegal.
( Trinidad born Dr. Radhakrishnan Persaud is a leading Canadian constitutional scholar. He is a professor at the Glendon Campus and the School of Public Policy and Administration, York University, Toronto.)