Ontario’s 42nd Parliament, 1st Session: Better Local Government Act, the Superior Court of Ontario, the Canadian Charter of Rights and Freedoms, the Notwithstanding Clause, and Bill 31, Efficient Local Government Act

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Hoo, that’s a title. Let’s start with a timeline, shall we?

You’ll remember from my first post in this series a rather peculiar Bill that reached the floor of the Legislative Assembly on July 30: Bill 5, Better Local Government Act, 2018. It, amongst other things, cut the number of municipal wards in Toronto from 47 to 25 a little over two months before its municipal election.

It sustained heavy debate in August and, on the final day before recess, was carried through both its second and third readings (with division). There were immediate court challenges and Ontario Superior Court Justice Edward Belobaba was asked to examine the legality of the Bill.

In Ontario, as in the rest of Canada and in the United States, we have multiple branches of government designed to keep each other in check. The legislative branch is allowed to change the laws, yes, but only if the change is constitutional according to the judicial branch.

In this case Justice Belobaba ruled that it was not constitutional. By changing the terms of the election while it was ongoing, it interfered with the candidates’ Right to Free Expression. By increasing the number of residents per councillor it impinged on residents’ effective representation in municipal politics (which the Justice argued was a form of Expression so infringed).

The Government announced its intent to file an appeal, as is expected. If you don’t appeal, you’ve given up, and no politician I know of would dare give the impression of giving up. But as the Toronto election was a mere month and a half thence, it was unlikely that a legal argument would occur early enough to matter for the election currently under way.

What wasn’t expected (by me at least) was that the Premier announced his intention to reconvene the Legislative Assembly two weeks early from its recess and use the “Notwithstanding Clause” of the Charter to assert the Province’s right to govern itself despite the provision of the Charter.

If you’re familiar with the politics of the United States, think of it like this: If a State Government wanted to ignore certain provisions of the Bill of Rights all it had to do was vote for itself to be allowed to do so. Certain rights (term limits, voter eligibility) would be inalienable, but certain other ones (fundamental freedoms of religion, expression, press, peaceful assembly…) could be voted away five years at a time. One of its intended uses was to operate in case the judicial branch overstepped its bounds, but to my knowledge that has never actually happened. (Well, the Government party alleges it has now, of course, but only history will tell if this argument has merit.)

It’s been 18 years since the last time a Province attempted to vote on a Bill that invokes the Notwithstanding clause (Alberta tried and failed to use it to prevent the recognition of same-sex marriage. Wrong side of history, folks.). And now Ontario has one on the books:

Bill 31, Efficient Local Government Act, 2018

This is identical to Bill 5, Better Local Government Act, 2018 except for a few twiddles. There’s some adjustment of related acts because there were things that were supposed to happen in August that now need to be redone with the new ward territories… but the big one is the inclusion of lines like “The amendments to this Act made by Schedule 1 to the Efficient Local Government Act, 2018 apply despite the Human Rights Code.”

You know it’s a good bill when you have to specify that it needs to happen despite Human Rights.

Clarification:

This is not suspending the Charter, this is using the hard-negotiated rights of the Provinces to enact a segment of the Charter to suspend parts of itself in the course of provincial business. It is legal.

But as we have seen and continue to see with people arguing that “It’s a free country, so I’m allowed to say <terrible thing to say>”, if your only argument is that it’s legal, you already know it isn’t right.

Chaos in the House:

In Ontario we have an adversarial Legislative Assembly. The Opposition is there to debate motions on their merits (or lack thereof), and generally try and cajole the Government to explain itself and maybe change its approach.

When the Premier called the Assembly back in on September 12… well, things became a little bit more than adversarial. The Premier and several MPPs (notably in the Hansard the member for Essex) broke decorum, the gallery began demonstrating and had to be cleared… and all that within the first fifteen minutes of Question Period:

After lunch, the MPPs themselves interrupted parliamentary proceeding and some  “warning and naming” happened. If the Speaker determines that a member cannot maintain decorum, that member is named by their name (not by their riding, ministerial title, or title (like “Premier” or “Leader of the Opposition”)) by the Speaker and must leave. Or be escorted out.

The first to be escorted out was the MPP for my riding of Waterloo, Ms. Catherine Fife. The second was the Leader of the Opposition, Ms. Horwath. Over a dozen MPPs were escorted from the house, and then the first reading of Bill 31 carried (on division).

The next day, September 13, after a duration of further debate on Bill 4, Cap and Trade Cancellation Act, question period started back in with the NDP MPPs back in the house:

This is a level of acrimony I didn’t expect to see, and the Speaker seems pretty tired of it all. It’s getting so bad that even the MPPs aren’t willing to put up with talking past each other anymore, the member for Mushkegowuk-James Bay filed a notice of dissatisfaction under Standing Order 38(a) about the Government’s answer to their previous question about school infrastructure.

And this is all without even debating further Bill 31 and its Notwithstanding business. This is since the Leader of the Opposition and the Leader of the Green Party are working on a Reasoned Amendment to the Bill (sometimes used as a delaying tactic, mostly intended as a way for the non-Government members to suggest alternative Bill implementations), so debate on that to-be-written Amendment must happen first.

So what’s next? Well, the Legislative Assembly stands adjourned until next Wednesday the 19th. Why? Because of, and I kid you not, the International Plowing Match in Chatham-Kent.

So we won’t hear more about the Amendment until then, and we can’t hear more about Bill 31 and its use of the Notwithstanding clause until at least then…

…which means Toronto limps on in a quantum superposition. It had 45 wards, it was growing to 47, it was ordered to have 25, and the order was struck down.

I imagine voter turnout is going to be weak-to-middling when October 22 comes around, and there may even be grounds for a legal challenge of its validity given the confusion all this nonsense is causing…

But we’ll see.

 

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