Toronto councillors vote to ask feds to stop Ontario council-cutting plan

Toronto's city council voted 29-7 Thursday afternoon to direct the city solicitor to challenge the province's reintroduced council-cutting legislation and the use of the notwithstanding clause in court and to ask the federal government to stop the bill.

Councillors voted in favour of the request during an emergency session at city hall a day after Premier Doug Ford introduced Bill 31, which would see the size of the council of Canada's largest city dramatically slashed.

"I would say at this time Mr. Prime Minister, Toronto needs you," said Coun. Joe Mihevc, who brought forward the resolution to ask for Ottawa's assistance.

"We need you at this time to enforce that principle in the Charter of Rights and Freedoms that says we are all created equal within the law and we are all subject to due process."

The Ontario Progressive Conservative government introduced the bill after a Superior Court judge ruled previous legislation that would have achieved the same goal was unconstitutional. They say reducing the size of city council will make government more efficient.

The new legislation includes a rarely used constitutional provision called the the notwithstanding clause to ensure progress of the bill.

The clause has never been used in Ontario before and critics have condemned the move, saying it was not designed to deal with this kind of issue.

Prime Minister Justin Trudeau reiterated Thursday during a Liberal caucus retreat in Saskatoon that he would not block the Ontario government's use of the notwithstanding clause to forge ahead with its plans.

"I'm not going to weigh in on the actual debate over the size of the municipal governments in Ontario, in Toronto," Trudeau said.

"I don't think that is a role that the federal government needs to take on."

A provision of the Constitution technically permits the federal government to disallow provincial legislation, but it was last used in 1943, raising questions in legal circles about whether it has become obsolete.

'Virtually impossible' to hold fair election: city clerk 

Toronto's city clerk said Thursday that the confusion caused by the province's effort to cut the size of council before the fall election has "reached a tipping point" and it is "becoming virtually impossible" to hold a fair and accessible vote.

Speaking to councillors during the emergency meeting, Ulli Watkiss says she has a "huge concern" that she would be unable to ensure the integrity of a municipal election, something she is legally required to do under provincial legislation.

Watkiss added that she has retained her own independent counsel and will be discussing what options may be available to push back the date of the vote, currently scheduled for Oct. 22. 

There is confusion about how many wards will in fact be contested during the vote. Bill 31, which overwhelmingly passed first reading at Queen's Park on Wednesday, would slash the size of council from 47 seats to 25. It is expected to pass in the Ontario legislature by the end of September. 

The new legislation also includes a provision that would allow Watkiss to shorten or entirely eliminate the advanced voting period. In 2014, more than 160,000 people cast an advance vote, the highest number in the city's history.

Watkiss said she believes that doing away with advance votes would be undemocratic. 

"I believe that would result in an election that is not fair," she said. "All sorts of people have all kinds of circumstances in which they would need to be available on a day other than October 22 because they simply couldn't attend the election on October 22."

She added that, at the moment, many voters don't even know what ward they technically live in. 

Provincial Municipal Affairs Minister Steve Clark said he still believes Toronto residents can vote as scheduled. He wouldn't say, however, if the province has a backup plan should Toronto's clerk find that the city cannot be ready for the vote in time.

'Novel issues' for a legal challenge

Meanwhile, a secret city solicitor report provided to councillors suggests there are "novel issues" that could come up in a legal challenge against the province's use of the notwithstanding clause — but there's no judicial precedent for success.

In her two-page confidential report obtained by CBC Toronto, city solicitor Wendy Walberg notes there are "limited options" available to challenge the use of the clause. 

"[It] is, in essence, an extreme legislative power intended to be used in extraordinary circumstances, and subject to political, rather than legal, restraints," reads the report. "In our view, any challenge will be very difficult as the [Charter of Rights and Freedoms] arguments will not be available."

She notes the Supreme Court has held that the notwithstanding clause can't be applied retroactively, but also notes that Bill 31 is a different case. It's unclear how this analysis would help the city challenge the legislation.

But there may be other avenues, albeit novel ones.

Walberg notes that in a previous report from Aug. 15, she did provide legal arguments beyond those involving the Charter.

She also said the city could continue to argue that the province "clearly crossed the line" with its legislation when it comes to unwritten constitutional principles of democracy and the rule of law — because the notwithstanding clause doesn't apply to those unwritten principles. 

"Having said that, I stress that these would be novel issues that do not yet have any judicial precedent for success," reads the report.

Walberg also writes that the city has "no reason" to believe the federal government intends to take any action regarding the province's council cuts legislation.

Opposition​ plans to delay bill

Opposition parties in the Ontario legislature have vowed to use procedural tools to delay the bill as much as possible.

The NDP said Thursday that it will challenge the bill under rules that bar the legislature from debating an item currently before the courts.

The Speaker, Progressive Conservative Ted Arnott, will be called to rule on the matter, though it's unclear how long it will take him to decide.

The government, meanwhile, is seeking to make procedural changes the New Democrats say aim to prevent opposition parties from delaying the passing of legislation.

NDP Leader Andrea Horwath said several provincial and federal Conservatives have spoken out against the use of the notwithstanding clause.

"The only Conservatives defending the premier's decision are the ones who rely on him for their jobs," she said.

"How can the premier be so certain that he is right when so many thoughtful Conservatives are telling him he is utterly and totally wrong?"

The premier, however, once again dismissed arguments that he is overriding charter rights, saying the notwithstanding clause is itself part of the Constitution.

"If it wasn't there to be used, it would not be there," he said. "We live in a democracy. This is going to be the will of the people."