Ford to invoke notwithstanding clause after Toronto city council ruling

In a historic move, Premier Doug Ford has announced he intends to invoke the notwithstanding clause to reduce the number of Toronto city council wards from 47 to 25.

Ford said he has already notified Ontario's Lieutenant Governor to recall the legislature to pass the Better Local Government Act again, after portions of it were struck down by the court in a decision released Monday morning.

At an afternoon press conference, Ford said the use of the notwithstanding clause — section 33 of the Canadian Charter of Rights and Freedoms — was justified because laws should be made by governments elected by voters.

"We are prepared to use section 33 again in the future," said Ford. "It is the people who decide what is in their best interest."

"I was elected; the judge was appointed," the premier said, noting Justice Edward Belobaba was appointed by a Liberal, and citing the number of Ontarians who voted for the PCs in the June election.

"I believe this judge's decision is deeply, deeply concerning. The result is unacceptable to the people of Ontario," Ford added. The premier, who spoke with Municipal Affairs Minister Steve Clark by his side, went on to say that the prospect provincial laws could be overturned by the courts in the future was "disturbing" and "scary."

The legislature will re-convene on Wednesday to discuss the new bill, which the premier said will be a free vote for the PC MPPs.

It marks the first time Ontario will use the clause, which has only been successfully invoked by Quebec and Saskatchewan.

Ford contended that the court overruling provincial legislation was more exceptional than invoking the notwithstanding clause: "What's extraordinary is a democratically elected government trying to be shut down by the courts. That is extraordinary. It concerns me more than anything. We live in a democracy."

He also argued that reducing the size of Toronto city council is an important enough reason to take the exceptional measure, despite today's court ruling that the legislation limited the freedom of expression of Toronto's council candidates and voters.

The only people who objected, he claimed, were "left-wing councillors" and special interests that are beholden to them.

Ford, a former one-term Toronto city councillor, also politically positioned himself in contrast to the city's elected municipal politicians. "These councillors, they don't worry about you, folks. They worry about themselves. I worry about the people. They worry about holding onto power," he said in front of a sign that read "for the people." He went on to criticize what he characterized as too many NDP councillors on Toronto council.

Opposition Leader Andrea Horwath bemoaned Ford's invocation of the notwithstanding clause. "This is a sad day for democracy," she told reporters in an afternoon press conference. She added that the clause "is rarely, rarely used because most premiers understand the significance of it."

She criticized Ford for not fully appreciating the powers and duties of his office, saying "We obviously have a premier that has very little understanding of his responsibility to uphold the democratic rights of the people of this province."

Horwath declined to say whether she would rule out using the notwithstanding clause entirely, saying that she doesn't know what the future of Ontario holds.

Horwath also singled out Ford's comments about the judge's impartiality and expertise in the case, characterizing them as wholly inappropriate. "When he suggested that this particular justice was behaving in a way that was somehow beholden to Dalton McGuinty, I was shocked. Let's face it. A fundamental upholding of our democracy means a free and independent judiciary. For Mr. Ford to suggest that our judiciary is not behaving in an independent way is an absolute insult."

While Belobaba was appointed by former Liberal Prime Minister Paul Martin, Ford mistakenly said the judge was appointed by McGuinty during his press conference.

In a statement, the Liberal caucus at Queen's Park said that invoking the notwithstanding clause sets a "dangerous precedent." "Premier Ford should obey [the Superior Court] ruling. It is the right thing to do. Governing in a democracy requires the discipline to respect our constitution even when one is unhappy with the result."

Green Party Leader Mike Schreiner called the move by the premier "unprecedented" and warned about its implications. "That Premier Ford would choose to use the Notwithstanding Clause in this way shows his arrogance and contempt for democracy."

Ford's announcement that he would invoke the notwithstanding clause flipped the script on a remarkable ruling that was released at 8 a.m. on Monday.

In the judgment, portions of the Better Local Government Act that reduced Toronto city council from 47 wards to 25 were deemed unconstitutional in a court ruling.

"The province has clearly crossed the line," stated Ontario Superior Court Justice Belobaba in his 19-page decision on what he called an "unprecedented" case. The judge lambasted the government's approach in one of its first big pieces of legislation. "There is no evidence that any other options or approaches were considered or that any consultation ever took place. It appears that Bill 5 was hurriedly enacted to take effect in the middle of the city’s election without much thought at all, more out of pique than principle."

At one point he sassed the government lack of reasoning behind the urgency of Bill 5, using a one-word paragraph — "Crickets" — to state that it did not provide any discernible explanation.

The ruling temporarily slammed the brakes on the Premier Doug Ford's push to alter the terms of Toronto's municipal election, an idea he put forward the day before municipal nominations were originally scheduled to close in Ontario.

Following a recent legal loss in a legal challenge brought forward by the electric car company Tesla, it also highlighted that the government's ambitious agenda and breakneck speed may be slowed by the courts.

The judge found that the government's legislation violated section 2(b) of the charter, and "substantially interfered with both the candidate’s and the voter’s right to freedom of expression." He added that he was not persuaded by the government's arguments under section 1, which allows reasonable limits to be placed on rights and freedoms.

Ford's Bill 5, the Better Local Government Act, had been roundly criticized by Toronto's mayor, the majority of councillors and many council candidates as an unfair change to election in the middle of the campaign. Council candidate Rocco Achampong — who once ran for the PCs — initiated a legal challenge to overturn the legislation. The lawsuit was later joined by the City of Toronto, the Toronto District School Board and other council candidates.

Toronto Mayor John Tory called for a referendum in an evening press conference, provided he gets re-elected in October. The mayor argued that voters deserve to weigh in on the matter, and that it shouldn't solely be up to the premier. "They want to see a discussion, not a fiat."

He also shared what he will do to respond to the premier's announcement, saying, "I will continue consulting with the city's lawyers to discuss what if any options we have." Tory added that his office has reached out to Prime Minister Justin Trudeau's office about the issue. Tory also said he would reach out to mayors in other Ontario cities, warning that Bill 5 or something like it could happen to them too. There will also be a special meeting of city council on Thursday.

-with files from Stephen Spencer Davis