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Jennifer Pagliaro @jpags
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Today’s the day - lawyers will make their case against Bill 5 this morning in a University Ave. courtroom. The hearing starts at 10 a.m. Stick with me throughout for updates:…
I have gone through and read closely most of the more than 5,000 pages of documents filed in this hearing. Here’s what you need to know:…
Applicants and their lawyers are here outside the courthouse. I’m going in shortly and will have updates once the hearing gets underway
We're in the massive courtroom 6-1 at 361 University Ave. Still room in the public gallery for anyone interested, but some 50 people here already with still half an hour before the hearing is set to start
Background on the courtroom we're in
The courtroom has filled up just ahead of start time. Lots of council candidates, many who are applicants or intervening in this case. A hush falls over the crowd as Justice Belobaba arrives. There are more than 20 lawyers in front of him now
Belobaba is ensuring all the lawyers are in the right place. "You're here by yourself?" Belobaba says to TDSB's lawyer (there are teams of 3-5 lawyers for each of the other parties here) to laughs
Belobaba thanks all parties for work they did under tight timetable, noting this case needed to be heard "ASAP" because of looming election. Notes either side may appeal - jokes, "as they should". We aren't getting decision today, but judge aiming to have decision by Sept. 10
Belobaba notes most of the argument has already been made - 80 per cent - in written submissions. Today is for anything final. "I think I know what the gist of the arguments (are)..." Important: "I'm still not sure which way I should decide." Says he's keeping an "open mind"
Belobaba says he is still interested in whether Charter 2(b) freedom of expression rights have been infringed as it relates to voting and councillors' capacity to represent. This is a component of effective representation outlined by the Supreme Court
"I'm still not completely clear" on whether there is infringement of 2(b), Belobaba says. Wants to go over the case law, expert evidence submitted here. OK, he says, enough of the speeches. Who wants to go first? They are trying to move a lectern now so we can all hear
As they awkwardly roll the lectern forward, Belobaba jokes to province's lawyer that he take back to the Premier that he wants better technology in courts
City is up first with director of litigation Diana Dimmer. "There's no precedent like this where a government has interfered mid-stream in an election," she says. "And that simply can't be justified in our democratic society."
Dimmer is now explaining effective representation. The concept was spelled out in a Supreme Court case. The most important part, that court says, is voter parity - that all votes should have equal weight. Perfect parity, the court recognized, is not possible, but that is the test
This is a bit tricky to wrap your head around, but think of it this way - if one ward has 100,000 people and another has 10,000 people, voter parity is not achieved. City launched a ward boundary review to fix the city's unbalanced ward populations
It's easy to see how wards become unbalanced in terms of population - parts of the downtown core, North York and Etobicoke-Lakeshore are growing rapidly compared to other parts of the city. Independent consultants designed options based on a target average population of 61,000
Dimmer explains that the Supreme Court ruled other aspects of effective representation can justify a move away from voter parity - such as elected officials' capacity to represent and keeping established communities within the same boundaries, represented by one official
Belobaba is now asking about this passage from the Supreme Court ruling on effective representation and, as it says, "the right to bring one's grievances and concerns to the attention of one's government representative"
City's consultants have raised concerns about ability for councillors to effectively represent their communities with larger wards with average 110,000 people. Belobaba asking if the right of residents to have their grievances heard as per Supreme Court, limits provincial powers
Dimmer now quoting Ford in the legislature when he talked about getting a hypothetical resident's cat out of a tree and how debates at council about this kind of hyper-local stuff can drag on. City says hyper-local issues matter to residents, important to local level of democracy
When city's decision to adopt 47-wards was challenged at Ontario Municipal Board, a provincial tribunal, last year a majority upheld council decision but there was a dissenting member. Belobaba indicates he's not interested in dissenting opinion which province has relied on here
Those representing Councillor Di Ciano and others in the challenge of 47-wards in favour of 25-wards argued the variances between populations for the 2018 election were too great with the 47-ward option
But the city's lawyer at the OMB pointed out that if you look at actual population numbers comparing the 47- and 25-ward options, not percentages, because the 25-wards are so much larger the biggest variances were actually about the same. Dimmer is going over all this
Majority OMB panel agreed with city late last year in a written decision that the difference in voter parity between the two options was "not significant," Dimmer says, countering province's claim here that the 25-ward option would provide better voter parity in a 2018 election
Dimmer concludes by noting Toronto is the only municipality in Ontario that has had ward boundaries imposed on them and in no other city would each representative be responsible for so many people. City's Glenn Chu up next
"The law says the province can do whatever the heck it wants," provided they don't breach the Charter, Belobaba says, indicating he isn't willing to consider unwritten constitutional principles, which city and others are arguing here. This is a wrench. Chu trying anyways
Belobaba, again, does seem interested in potential breach of section 2(b) Charter rights
Belobaba does not seem particularly moved at this point by Chu's arguments about unwritten constitutional principles. He's basically asking Chu to focus on the Charter argument
"You may persuade me, but so far I'm not there," Belobaba says of the argument about unwritten constitutional principles. Chu moves on to potential Charter breach
If you're going to give the right to vote to the citizens of the city, city's lawyer Chu says, you can't do so in a way that isn't in accordance with Charter rights, constitutional principles. Effective representation must be secured
Chu says if you agree with the province that they can do whatever they want and cities have no status, then the province could make rules that one person gets to vote 14 times and others only once. That, he said, couldn't possibly be allowed
Howard Goldblatt now up, begins by saying Bill 5 "trounces on" one of the most fundamental aspects of democracy - the ability to participate and express oneself in an election
Belobaba says now that the province has argued in an earlier letter to him and all counsel that they need more time to make their case. Whether that becomes an issue remains to be seen
Goldblatt notes province calls expert evidence "speculative and anecdotal" but have not provided their own expert evidence or asked to cross-examine those experts
A group of law students at Goldblatt Partners apparently transcribed the entire council meeting, or at least most of it, where a Bill 5 challenge was discussed. I would like to objectively commend them for completing that daunting task
Goldblatt now going over what the city clerk said about her ability to again conduct the election with 47-wards, which Belobaba has asked about and the province has focused heavily on. Clerk was not categorical, he says, told council she'd have to reassess if Bill 5 struck down
Goldblatt now outlining that the election was set up with boundaries, rules and timing that dictated how campaigns were structured and decisions by candidates and others were made
Bill 5 came down like a "hammer" right in the middle of an election, is that the argument? Belobaba asks. Goldblatt: The province not only entered the marketplace, they've changed the marketplace and nullified all the activity that took place before they arrived
"Bill 5 has rendered moot all of this expressive activity," Goldblatt says. Bill 5 is the only reason that activity has been "rendered wasted" and by doing so, the most important and protected type of expression has been eliminated. Quick break now.
Goldblatt lawyers - representing candidate @ChrisMoiseTO, volunteer @IshAderonmu and @WomenWinTO's Prabha Khosla - continue case that Bill 5 violates Charter rights of freedom of expression, association and equality
Christine Davies, from Goldblatt, points to @WomenWinTO and the work they've done to prepare women candidates to run for public office - says Bill 5 has destabilized and upended those and other efforts
Heather Ann McConnell, from Goldblatt, now arguing Bill 5 further disadvantages marginalized groups - visible minorities, women, LGBTQ persons. Says Bill 5 "widens that gap" of discrimination referenced in case law by creating barriers for candidates, electors, community groups
Bill 5 disadvantages those groups who have, historically, fewer financial resources to compete in an election, reduces the amount of time they have to mount a campaign, while doubling the geography they have to cover
Bill 5 ignores that council incumbents are predominantly white, straight and male, McConnell says, and increases the incumbency advantage while disadvantaging diverse candidates who were seeking office in the 47-ward election and those who sought to be represented by them
"There will be a long legacy of impact" if Bill 5 is allowed to impact the election as it has, McConnell says in conclusion, noting the four year term that will follow with those elected to council
Don Eady, from Palaire Roland, now up to try to convince Belobaba that the unwritten constitutional principle of democracy does apply here and should be considered
Eady is advancing an argument that the key thing here is the interference in the midst of an election. "Once you start an election process, the government needs to stay out of the way."
Lawyer for TDSB has been asked to take a back seat for now on their concerns about the legislation until Belobaba decides the main issue, the judge says, and then sort out the school ward issue as required
Gavin Magrath, representing candidate Rocco Achampong, making legal arguments now that the province is bound to consult with the city. Notes Toronto has been singled out and says province has to justify that
Why is it that candidates in Niagara and Oakville will have more access to local representation than Toronto? Magrath asks. Notes if you applied this standard of federal and provincial ridings to other municipalities some would have one or fewer councillors
We're going to take a break until 2:20 p.m.
I wish I could take a video to show you all these people who care about democracy filing out of one of the city’s biggest (if not the biggest) courtrooms
Courtroom 6-1 is back from lunch break. The province's lawyers are now up to make their case in support of Bill 5. We're expecting about an hour of argument from them to respond to everything we heard this morning. You can still follow along here…
Robin Basu, representing the province, is now going over the clerk not being confident that she could go back to a 47-ward election (province's law students apparently verified the council transcript, so kudos to them too)
Basu is now explaining voter parity. Says the 47-ward option only "partially" solves the problem of the ward population balance being out of whack. Basu trying to say that Ford's government has always been concerned about voter parity in Toronto for the 2018 election
Basu reminds us the province has the power to "destroy" the City of Toronto at any time - notes, rather importantly for our benefit, that he does not believe that is the intention of Ford's government
Belobaba stops Basu now and says he'll be very curious to know if the Ford government sought legal advice before introducing Bill 5. "I'll bet the answer's no."
Basu says he'll be claiming solicitor-client privilege to not answer that question
Basu argues MPPs and MPs deal with countless local and grassroots issues on a daily basis and are not so different from councillors. Belobaba: "And the evidence of that is what?" Apparently we'll get to that
The democratically-elected legislature enacted valid legislation and those arguing the unwritten principle of democracy, the province argues, is turning that principle on its head
Effective representation is not a constitutionally-entrenched right, province arguing now. It's a "policy choice."
Folks in my timeline not super stoked about this argument from the lawyers representing the province of Ontario
"When governments legislate sometimes there are winners and losers," Basu says. Political complaints that candidates and electors have somehow lost out with this legislation are fair, he says, but its not a constitutional complaint
Basu is talking about councillors dealing with potholes and how that could be resolved with a helpline. There, he may not be aware, is a helpline
However, there are often situations, with potholes or anything else, where things don't get quickly or easily resolved. The first point and often only point of contact for so many residents is, in my experience covering city hall, their councillor
The Canadian Taxpayers Federation lawyer Derek Ball is now up. They intervened in this case in support of the province, argue the legislation can't be quashed on the basis of unwritten constitutional principles, as some here have argued
And we are now taking a quick break before everyone says all the final things they want to say
OK, back from break. Chu from the city is up first with any reply to the province's arguments. Chu notes the city is a democratically-elected government, which needs to be cleared up, apparently
The city is not seeking constitutional status, Chu says. City has already been given a right to vote for the government and that must comply with the constitution and the Charter.
Chu says they find it troubling that the province would use the principle of democracy to defend legislation that "tramples democracy."
Eady argues now that Bill 5 "extinguished" and "trampled" on the meaningfulness of participation in the democratic process, including expression like voting, donating, campaigning
Steven Barrett, from Goldblatt, notes the government focused primarily on saving taxpayer money when the legislation was debated. Ford himself never once mentioned voter parity, nor did official announcements or materials.
From Tory, in my inbox now with arguments still ongoing:
Barrett says the province has not provided more than "mere assertion" that council is dysfunctional and that is not reason enough to justify the interference in an election. "There's no evidence."
There's also no evidence, Barrett says, that even if council were dysfunctional that the solution provided by the province - cutting the number of wards to 25 - would resolve that problem
On balance, does the importance of the objective outweigh the impact of the measure? Barrett asks. Says even if you could argue better voter parity achieved by Bill 5 - at what cost? Says has "profound" effect on election, rights, effective representation
Belobaba asks if there's an alternative to deal with theoretical council dysfunction (citing Ford's hypothetical cat in a tree). Barrett pitches time limits on speaking instead of infringing Charter rights (There are time limits). City notes council never debates cats in trees
OK people, we're done with arguments here in courtroom 6-1 and I need to go write up a story. The latest we can expect a decision from Justice Belobaba, he confirms, is Sept. 11.
One last word, from Justice Belobaba before we left his courtroom: "I can't believe that there are Torontonians sitting in a courtroom 20 (minutes) after 6 (p.m.) on the Friday of a long weekend."
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