Ford government's Bill 39 is 'against the basic democratic instinct'
The latest interference by Ford government on city councils could raise a constitutional challenge
Maybe it was better when Doug Ford ignored us here in Ottawa.
Sure, the premier could have shown the capital a little more love during the truck convoy or after the devastating storm last May.
But given what's happened in the last few weeks — and in particular the new legislation tabled this week that many are calling undemocratic — many may be wishing for the days when the Ford government focused more of its attention on Toronto.
Bill 39 is called the Better Municipal Governance Act. Apparently, what the Progressive Conservative government considers good governance is allowing the mayors of Toronto and Ottawa to push through their own local laws with only one-third support of council.
A power virtually unheard of on any elected body from student council to the federal government, it was the recent request of re-elected Toronto Mayor John Tory.
Like the premier, Tory made no secret of his view that heads of council should have more power than the single vote provided them under provincial law.
And in August, the Progressive Conservative government obliged by quickly passing so-called "strong mayor" legislation. Among (many) other things, it allows the mayors of Toronto and Ottawa to veto bylaws that impeded the province's priorities around building more housing.
But being able to set the budget and veto various bylaws wasn't good enough for Tory. He wanted "proactive" powers to push his own plans through a duly elected city council.
Yet again, the province accommodated Tory.
And somehow, Ottawa has been caught up in these expanded, not-ever-publicly-discussed new powers, despite our leaders — both former mayor Jim Watson and new Mayor Mark Sutcliffe — vowing they never asked for these unprecedented authorities, nor would they use them.
No Ontario government has interfered so blatantly in local government, at least not since a previous PC government imposed amalgamation on many municipalities at the turn of the last century.
Councillors are stunned and angry over the news that came literally two days after they were sworn in.
Coun. Jeff Leiper called the province's latest legislation, as well as the housing-related Bill 23 that overrides a number of city powers, "a gross abuse of democracy." It's a very harsh reminder, says Coun. Glen Gower, that municipalities "are creatures of the province. We've always been at the whim of the province and their decisions."
He thinks that's a problem. And one that has no easy fix.
Cities 'can't protect themselves' from province
The subservience of municipalities is entrenched in the Constitution.
Section 92 gives provincial legislatures the exclusive authority to make laws in relation to "municipal institutions."
Those provincial powers, first envisioned in the middle of the 19th century, were re-enforced just last year when the Supreme Court ruled the Ford government had the right to chop the number of Toronto wards to 25 from 47, right in the middle of the 2018 election. It was a 5-4 split decision, but the highest court still confirmed the Constitutional principle that municipalities are creatures of the province.
"If a province wants to invest itself in changing governance at municipalities, it can do so unless there's a change in the Constitution — so that's pretty dangerous," says Nathalie Des Rosiers, the principal of Massey College at the University of Toronto and the former Liberal MPP for Ottawa-Vanier.
"Municipalities cannot protect themselves, and that's part of the issue," says Des Rosiers, who has written about the problem of Constitutional constraints on cities. "They cannot protect themselves from interference by the province."
Des Rosiers suspects that if Bill 39 is passed in its current state — it includes more autocratic measures, including giving the minister of municipal affairs and housing the right to name the regional heads of council in Niagara, Peel and York regions, instead of the elected councillors — it could stir up talk of a Constitutional challenge.
That could happen in a couple of ways.
Someone could wait for either Tory or Sutcliffe to use the power and challenge the decision in court. That's what happened when Ford cut the size of the Toronto council. The city took the province to court, but lost in two different courts.
Or a group of citizens could try to challenge the law as a public interest litigant.
There's a disadvantage to this option, says Des Rosiers, because it's up to the courts whether to hear this sort of case — there's no automatic right to be a public interest litigant.
Still, the fact that Bill 39 gives mayors the power to push laws through with only a minority of votes could make it vulnerable.
While our country's divisions of power does give provinces jurisdiction over the cities, the Supreme Court has also recognized so-called unwritten principles of the Constitution, including that of democracy, which involved a system of majority rule.
We understand a democracy as being 50 per cent, plus 1, says Des Rosiers. This new law would essentially allow a mayor to do whatever they want, with most of council becoming "little more than a chamber of discussion."
"It goes against the basic democratic reflex that if [councillors] were elected, it's because people want them to say something, as they have a duty to represent their constituents," she says.
The Ford government's Bill 39 would essentially silence two-thirds of the elected officials of Ontario's two largest cities.
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