The Ford government is claiming that it needs to use the Notwithstanding Clause to ensure that the Toronto municipal election takes place on October 22nd in accordance with Bill 5, that is, with 25 councillors as opposed to 47. It may not be possible – further litigation is likely to be filed. We might be heading toward further chaos and constitutional uncertainty. We could end up with a Toronto City Council of 25 which is unconstitutional.
There are very few cases dealing with the Notwithstanding Clause since that it has not been used often. However, in a 1988 Supreme Court of Canada case, the Court was clear that the Notwithstanding clause cannot be used retroactively. Bill 5 is a retroactive legislation because it changes nomination dates that have already passed. Using the Notwithstanding Clause today as is planned by the Premier has a retroactive effect: it validates the extension of times that have already expired.
Furthermore, the applicants in the legal challenge raised arguments about the unconstitutionality of bill 5 that cannot be “cured” by a notwithstanding clause. The applicants raise the argument that bill 5 was against the unwritten principles of our constitutional order, namely the principle of democracy because it sought to intervene and change the rules in the middle of an election. Whether the government wants it or not, there is a risk that an appellate body could agree with this argument and rule that Bill 5 was unconstitutional not because it violated freedom of expression, but because it violated a fundamental principle of our constitution. This cannot be remedied by a notwithstanding clause.
This would mean that the election was invalid and that the Toronto City Council cannot operate legally. Further chaos and uncertainty would be created. Legislation would probably be necessary to validate actions taken by City Council. Again, creating further risks of uncertainty.
Finally, we should worry about the legitimacy deficit of a Toronto City Council elected after a judge has ruled that the process violated Charter rights. How can counsellors act efficiently and make difficult decisions when their election was marred with legal uncertainty and confusion.
There is only one reasonable course of action here: obey the judge’s decision and let the election take place at 47 councillors. If the Premier feels strongly, as he does, that a new governance model is necessary in Toronto, he can work toward implementation in an orderly fashion and not interfere in on-going elections.
Nathalie Des Rosiers
MPP for Ottawa-Vanier
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