Premier Doug Ford’s government has proven to be unusual in the tradition of Ontarian politics. Past premiers have tended to err on the side of caution, operating on a moderate, consensus-based program. They have typically prioritized competent and pragmatic governance over grand ideals and purposes. Ford’s firm, populist, “for the people” style, in contrast, translates to an aggressive, uncompromising decision-making process.
Ford’s decision to cut the size of Toronto City Council — and invoke the notwithstanding clause to defend it — is the most recent example of this novel approach to governance. Objectively, the proposal is a justified one: City Council is far from the most efficient and agile institution it could be. While his headstrong pursuit of this quest is reckless, he is fully exercising the government’s legal rights. He is simply pushing the boundaries that no premier has ever thought to go near.
The Better Local Government Act, also known as Bill 5, which passed in August, began the process to cut City Council from 47 members to 25. Ford argues that the measure sought to end the “culture of waste and mismanagement” around the council. He believes that the high number of members entails a redundant and ineffective process, and by reducing its size, it will be “easier to get things done.”
As an idea, this claim is inherently reasonable. City Council is notorious for its inefficiencies. There is an inherent difficulty in having an efficient decision-making process with 47 independent, outspoken voices. When Toronto is compared with other major cities, the council’s size seems excessive. Los Angeles, for instance, has only 15. Philadelphia has 17, Houston has 16, and Vancouver has 10. These cities have established that effective, capable, and democratic local governments can exist in smaller sizes.
Critics argue that the decision is, at best, reckless and, at worst, anti-democratic. Although less efficient, more voices may be more effective in providing representation. For the average citizen, it is much easier to influence a representative of 60,000 than one of 100,000 people.
The strongest critics challenge the legality of the law, accusing Ford of having sinister intentions. In this view, the decision is an autocratic intervention into Toronto’s affairs that compromises the city’s democracy and silences its citizens, and it is also a vendetta against the council for his own negative experiences as a councillor.
These concerns about effective representation come down to a matter of balance. Of course, the city needs several councillors to ensure representation. But with that being said, it surely should not have too many. The claims about Ford’s intentions seem somewhat far-fetched. This decision is simply the result of Ford’s long-held values of smaller and less costly government.
It would also be an exaggeration to call the general proposal an attack on democracy. Municipal governments are well understood to be under the ‘constitutional authority’ of the provinces, thereby justifying provincial jurisdiction over municipal functions, finance, and governing structure.
Critics, however, are right in pointing out that the particular timing and conduct of the decision is reckless. With the municipal election coming up in October, this decision throws the process into a chaotic situation. There is no reason why the decision had to be made now. The move was also done in a very top-down and unrespectable fashion. Mayor John Tory and the council were given no consultation, let alone any warning, that this was coming. It would have been better to propose this policy first as part of a broader, public consultation with the municipality on the various ways City Council could be improved.
This quick, reckless decision also overlooked the potential illegality of the decision, made clear by the Ontario Superior Court Justice Edward Belobaba’s ruling, which found that Ford’s decision to “suddenly and in the middle of this electoral process impose new rules” compromised both candidates’ and citizens’ freedom of expression under the Canadian Charter of Rights and Freedoms.
However, Belobaba bases his ruling only on the timing of Ford’s decision, therefore leaving open the possibility that, if done at a latter and more reasonable point, the cuts to the council would be legal and receive no objection from the judiciary.
Ford’s response was unprecedented: the invocation of the notwithstanding clause. As Section 33 of the Charter, this allows the provincial government to overrule certain portions of the Charter. This initially seems to be an overreaction. Although the courts have brought all governments grief, no previous premier has felt Section 33 to be necessary. The clause does have negative connotations, suggesting a disdain for the judicial system and for the Charter itself. The fact that it could be theoretically used to compromise various rights and freedoms has made premiers regard it as too dangerous.
Regardless of the unorthodoxy and recklessness of Ford’s approach, he has the full legal right to follow his course. Section 33 of the Charter was put in place for the exact situation Ford is claiming this to be. The clause, as requested by several provinces, was designed to be an accountability mechanism to the substantial amount of power granted to the courts by the Charter. It also ensures that the legislature, as a democratic and representative assembly, had the final say. Regardless of whether or not this is actually an overreach, the clause allows the Progessive Conservative government to make that determination.
This ability to shrug off convention is consistent with Ford’s ideology and aggressive, populist style — the very thing he promised he would bring to Queen’s Park. Ford is claiming that the good of ‘the people,’ from whom he has, in his own view, received a universal mandate, justifies an aggressive push to get things done regardless of the obstacles in the way. Thus, it is likely that we will continue to see more convention-breaking actions in the future.
Given that the Ontario Court of Appeal has recently overturned Belobaba’s ruling, the notwithstanding clause has not been used. Nevertheless, the premier’s willingness to do so indicates a new approach to governance in Ontario.
Sam Routley is a fourth-year Political Science, Philosophy, and History student at St. Michael’s College.
