Bill 5

Province rams election bill through

One level of government messing around in another level of government’s jurisdiction and operations almost always ends badly. Nonetheless, Ontario has chosen this path to force its Bill 5 through the Legislature. The bill’s two operative parts:

• Cancels region-wide elections for the influential post of Chair of Peel Region. The same cancellation affects York, Niagara and Muskoka regions;
• Imposes a 25-member city council on the City of Toronto, negating a thorough process that chose a 47-ward system for that city.

Bill 5 was time-allocated to truncate debate in the Legislature. It was not referred to a Legislative standing committee to hear outside output. No amendments were sought or were accepted. The government did not campaign on the bill, and its introduction came halfway through the municipal election period.

From time to time, the Province does step into matters of local government. Most recently in Peel Region, it happened when the Dufferin-Peel Catholic District School Board was manifestly unable to resolve serious deficiencies. After months of effort to work with the Board and its trustees, Ontario sent in a supervisor to head the Board. Within a bit more than a year, the Board had been handed back to its trustees for governance. When the Province has historically stepped into local governance, it has been for a strong reason, and to fix something that had visibly gone wrong, and then only when no other option would work.

Challenge

A federal or provincial Bill becomes law once it has cleared third reading. Bill 5 has passed at third reading. After this, the Governor General (for federal bills) or Lieutenant Governor (provincial bills) must ‘proclaim’ the Bill in the name of the Queen. At this point, the bill is law.

What has never been made clear, however, is how the bill itself will work. This ‘nitty-gritty’ detail comes in the form of regulations which specify how the bill’s provisions will work. What are the regulations that govern Bill 5? Not published as of August 14.

Cities are ‘creatures of the Province.’ This means that the legal basis on which cities operate is dictated by provincial legislation, mostly the Ontario Municipal Act and the Ontario Municipal Elections Act. The City of Toronto has its own specific act: the City of Toronto Act. It is sensible for Ontario’s 400 + municipalities to operate on a common framework, and for each municipality to choose its council in a manner compatible to other provincial towns and cities.

Canadian courts are properly cautious about a challenge to a bill passed (regardless of what you think of the government or its process) by a provincial legislature or by our federal Parliament. As such, the threshold for a court to strike down legislation is a steep one.

But is it possible?

The City of Toronto is considering a challenge. The candidates for the position of Chair in the four affected regions lack the financial resources to do so. Here are some considerations the courts may be asked to weigh:

• Consent of the Governed: Those affected by laws are expected to have a say in what those laws are, and how they work. The Premier never mentioned the measures in Bill 5 while seeking his party’s leadership. The measures in Bill 5 were never mentioned by the government in its election. Affecting municipal elections was not part of the government’s Throne Speech (its legislative agenda). No opportunity to offer input at committee was available. The affected parties were not merely unsupportive, but solidly opposed to the proposals in Bill 5. Will the courts accept an argument that Bill 5 does not have the ‘Consent of the Governed?’
• Arbitrariness: Nowhere else in Canada are municipal ward (or provincial riding) boundaries drawn on the same population basis as federal ridings. Were such a looney idea widespread, the Atlantic provinces would each have about two dozen provincial representatives. Halifax would have a mayor and four city councillors. Montreal, with its urban community of nearly two dozen cities and 1.75 million people, would be governed by a mayor and about 18 councillors. The population size of federal ridings is a one-size that may fit the federal government, but is impractical at every other level. Cities themselves, and not their upper-tier governments, need to be able to choose how many people it takes to operate as effective and responsive organizational entities;
• Unworkability: May a government use its legally-elected majority to redefine how an election proceeds when it is half over, and do so by means unspecified in the legislation? How do candidates switch wards (in Toronto), or wind up campaigns already well underway? How are expenses reconciled and reimbursed?
• Outside Provincial scope: The Province was not asked by any city to undertake this reorganization initiative. Ontario (and the other provinces) may properly undertake to ensure that municipalities function, and elect their representatives, according to the accepted terms of a level playing field. But the Province is indisputably interfering in an independent level of government’s functioning, and doing so in a manner that will cause maximum confusion, and very possibly, injustice.

Perhaps there are other legal considerations that Toronto – or other plaintiffs – may user to challenge the Province.

Post-legislation precedent

The precedent created by Bill 5 would allow, for example, the Province to declare that Mississauga would, after 2022, be governed by a mayor and six councillors; Brampton by a mayor and five councillors; and Caledon by a mayor and one councillor. The Province could, as the original author of the various regional acts, arbitrarily dissolve entire regions without consultation, and create megacities modelled on federal riding boundaries. That, in fact, was actually done by the Harris government in the late 1990s. When federal riding boundaries change in the future, would this then cascade into changes in municipal boundaries?

By cancelling the election of the chairs of four Ontario regions (Peel, York, Niagara and Muskoka) while allowing regional chair elections in other regions (Halton, and others), is the Province saying that it alone reserves the right to change the terms of those regional elections as well, or simply to take upon itself the power to appoint all regional chairs? The various acts governing cities and the regions don’t envision this possibility, but don’t preclude or forbid it either.

Bill 5 is both bad legislation, and dangerous legislation.