Ford government acted constitutionally when it slashed Toronto council seats mid-election, Supreme Court rules in split decision

For the foreseeable future, Toronto elections will have 25 wards.

In a 5-4 decision, The Supreme Court of Canada ruled in favour of the province in a dispute with the city over whether the former could cut the size of Toronto's council nearly in half in the middle of the 2018 municipal election, from 47 wards to 25.

The majority found that the Better Local Government Act didn't violate freedom of expression or other rights under the Canadian Charter of Rights and Freedoms.

Justices Russel Brown and Richard Wagner noted in their majority decision that candidates still had 69 days — "longer than most federal and provincial election campaigns" — to deal with the change.

"Candidates continued to campaign vigorously, canvassing and debating about issues unrelated to the impugned provisions, the size of council or the ward boundaries," they wrote. "And even had they not, nothing in the Act prevented them from doing so."

Writing for the dissent, Justice Rosalie Abella argued that the timing of the cut interfered with charter rights.

"By radically redrawing electoral boundaries during an active election that was almost two-thirds complete, the legislation interfered with the rights of all participants in the electoral process to engage in meaningful reciprocal political discourse," she wrote (emphasis hers).

"Completely revamping the electoral process in the middle of an election was unprecedented in Canadian history. The question is whether it was also unconstitutional. In my respectful view, it was."

It's a much-needed legal win for the Ford government, which has had more than a dozen major court decisions go its opponents' ways — including on carbon pricing, minister's zoning orders, gas pump stickers and more.

Premier Doug Ford — a former Toronto councillor himself — often found himself on the outs with other councillors during his time there, and complained that council was too big and bureaucratic.

Municipal Affairs Minister Steve Clark said he's pleased the Supreme Court helped fulfill the government's promise to "end the culture of waste and mismanagement."

"Today’s ruling confirms what we already know: decisions are being made faster and more efficiently thanks to a much more streamlined process at the City of Toronto," he said in a statement, although the ruling did not address the efficiency of council meetings at all.

A Toronto Star analysis in 2019 found that the decrease in committee meetings didn't do much to offset the increases in workload for councillors, and left many residents feeling cut off from representation.

Clark said his government has "never been afraid of making the tough decisions that deliver the best outcomes for Ontarians, and we’d encourage the City of Toronto to remain committed to this positive model moving forward."

Opposition parties took a somewhat dimmer view, but didn't challenge the court's ruling.

NDP Leader Andrea Horwath said Ford won, "but that doesn't make it right. Our municipalities deserve respect, not a premier that sets out to just crush them."

Liberal Leader Steven Del Duca said he was disappointed with the decision.

“Millions of people have gone years without the level of representation they deserved, all because of a premier who will do anything to get his way,” he said in a statement.

And Green Leader Mike Schreiner used the decision to plug his party's support for more charter cities in Ontario, saying the case "raises serious questions about local democracy and the autonomy of cities."

Toronto Mayor John Tory thanked the court for its decision in a statement, saying he disagreed with the province's actions but is focused on responding to the COVID-19 pandemic — together with the province.

My statement on today’s Supreme Court of Canada decision. pic.twitter.com/HBUk2MLb4E

— John Tory (@JohnTory) October 1, 2021

The Supreme Court also disagreed on the importance of the charter's "unwritten" constitutional principles — which in this case basically means the general importance of democracy in Canada. The city had argued that the province was trampling on those principles — but because of their unwritten nature, they're very much open to interpretation.

The majority argued that the principles provide "context and backdrop" to help courts interpret the written charter rights, but can't invalidate legislation on their own.

Abella, however, positioned the unwritten principles as the bedrock of the constitution, calling them the "most basic normative commitments from which specific textual provisions derive."

She also noted that though the province argued it made the cut to save money and make council more efficient, it couldn't explain why it had to do so in the middle of an election.

"There was no hint of urgency, nor any overwhelming immediate policy need," she wrote.

The dispute with Toronto began in 2018, shortly after the Progressive Conservatives swept into power with a majority. That summer, despite no specific campaign promise on the issue and against a backdrop of vociferous protests, on Aug. 14, the government passed legislation that cut the number of Toronto wards from 47 down to 25.

The redraw happened over two weeks after nominations had closed for the 47-ward structure and threw the many campaigns into chaos. The provincial legislation also extended the nomination period to Sept. 14.

The 47-ward structure, put forward by an independent consultant and informed by community feedback, had been the subject of a multi-year review and debate at city council and was an increase from 44 wards in 2014 with the goal of more equitable and adequate representation over the next few election cycles.

Citizens, candidates and the City of Toronto applied to the Superior Court of Justice seeking a restoration of the 47 wards, arguing the province breached charter rights to freedom of expression, association and equality, and the unwritten charter principles of democracy and rule of law.

Justice Edward Belobaba agreed, and struck the bill down.

The province immediately appealed, and sparked a constitutional panic when the PC government included the notwithstanding clause in a rewrite of the legislation after it was quashed by the Superior Court. But that legislation was never used, as the Court of Appeal quickly granted the stay on Belobaba's decision, and eventually ruled 3-2 in favour of the province.

Ford later used the clause for the first time in Ontario's history to limit third-party election advertising in a move that mostly affects unions — generally enemies of the PC government.

In the meantime, the election happened, and 25 councillors were elected.

But Toronto wasn't finished, and decided to take the fight to the Supreme Court of Canada. It heard the case over one day in March, in which the city argued the province shouldn't have interfered so drastically in the middle of its election — and the province argued it had every right to do so.

Here's a recap of that day.