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The city and province meet in court again this morning at the start of a two-day hearing over the province's mid-election cut to the size of council. The Court of Appeal hearing begins at 10 a.m. If you're not up to speed on what's happening, stick with me /1
In July, @robertbenzie in our Queen's Park bureau got the scoop that Premier Doug Ford was planning to slash council nearly in half to align with federal/provincial ridings. I still remember being stunned when @dmrider got off the phone: thestar.com/news/queenspar… /2
As is now characteristic of city's relationship with province, council didn't take this lying down. Along with a group of candidates and residents, the city launched a legal challenge arguing Bill 5, the Better Local Government Act, was unconstitutional thestar.com/news/city_hall… /3
Superior Court Justice Edward Belobaba agreed with the city and those parties, saying Bill 5 infringed freedom of expression rights. He knocked down the legislation as unconstitutional thestar.com/news/toronto-e… /4
But Ford wasn't pleased and threatened to use a rarely-invoked clause that can see the province overrule the judiciary. That involved introducing a new Bill 31. The province also launched a legal appeal thestar.com/news/city_hall… /5
That appeal by the province to the Court of Appeal also involved asking for a "stay" decision on the lower court (J. Belobaba's) ruling - essentially what would pause the effect of the decision until the appeal could be heard and effectively ensuring a 25-ward election /6
The Court of Appeal heard arguments on the stay request itself first (not the actual appeal, though much of the arguments are similar). A three-judge panel ruled J. Belobaba had erred when he ruled Bill 5 was unconstitutional and granted the stay thestar.com/news/toronto-e… /7
But the stay is just a temporary measure until the appeal is heard. There is a lower-court ruling striking down the legislation and a stay decision that Belobaba erred in that decision. Now a rare five-judge CoA panel will hear the appeal on itself. That's where we're at today /8
In written arguments filed with the court, the province asks that the lower court decision be overturned, that Bill 5 be upheld, and that the city pay the province's legal costs /9
In their written arguments, the city says Bill 5 remains unconstitutional on the grounds found by J. Belobaba - that it infringes freedom of expression (Charter s.2b) rights of candidates, volunteers and voters - as well as the unwritten constitutional principle of democracy /10
The city is asking that J. Belobaba's decision striking down Bill 5 be upheld, but its invalidity not come into effect until the 2022 election (so, keep 25 wards for now, let the city do whatever it wants for the next election) /11
Sidenote #1: The candidates, volunteers and residents who originally fought the province in court have dropped out at this stage, so it’s just city v. province with some intervenor groups (like @FCM_online) on either side. This is likely due to province seeking legal costs /12
Sidenote #2: The Court is allowing CBC to broadcast the hearing, so you can watch the constitutional drama from home! (This is very cool and rarely allowed) /13
On Sidenote #1: Legally, when they withdrew the parties formerly fighting the province were recorded as consenting to the province’s appeal. One of the former parties (a candidate) weighs in on the lack of nuance in that status: /14
I am connected to WiFi in a courtroom. I am a very happy reporter. The room is largely reserved for lawyers, but I'm here and will be tweeting the highlights /15
Oh, fascinating - Justice Nordheimer is on this rare five-judge panel. He has some background on city/Ford matters: thestar.com/news/city_hall…
(I'm going to stop numbering these as we begin the hearing, but you can follow along with the proceedings in this thread). The province's lawyer Robin Basu begins with some "housekeeping" noting several of the parties have dropped out and consented to the province's appeal
Basu now raising the issue of wanting to file fresh evidence, which I wrote about here: thestar.com/news/city_hall…
Justice James MacPherson, who is chairing this panel says to Basu: "It’s hard to hear you use the words 'procedural fairness' when it was your client that enacted legislation really, really late in an election process." Says city was responding to an "emergency"
The legislature is "entitled" to act quickly, Basu says, arguing province moved as fast as possible to change city' ward structure after taking office. The justices are going to deal with whether to accept this fresh evidence later, it seems. Basu moving on to main arguments
Basu now trying to argue that the claim of "mid-election interference" is now moot because the election is now over and the claim doesn't apply to the 2022 election. Notes even the city is not looking to set aside the 2018 election
Justice Miller asks: Can the city not argue that a wrong was done and they're now just trying to make the best of a bad situation in terms of requesting the law be set aside for 2022 (but not create new upheaval by asking for a new election)?
One note on judges' questions: It sometimes seems like the judges are being very judgmental of whoever is actively making arguments, but the tone can be deceiving. Judges are trying to poke holes in all arguments to arrive at a consensus decision
Province now arguing city doesn't have standing to make s.2(b) - freedom of expression - Charter arguments because city itself doesn't have Charter rights. City says they're representing electorate, public interest
Now we're getting into the meat of it: The city's authority to delegate its own ward boundaries were taken away in Bill 5. Now, they are to match federal/provincial electoral districts determined by an arms-length commission based on the census every 10 years
If you're doing the math, updated boundaries based on the latest census won't apply until the 2026 municipal election. The city's ward boundary review, done by a third-party consultation, used population projections to accommodate the unprecedented and uneven growth in Toronto
Basu now spending a lot of time running through how campaign finances work, saying individual donors had $5,000 spending limits and no one has complained their donations were rendered useless by the ward changes *and* that they had hit the cap (I do not know if anyone complained)
J. MacPherson is now asking if the province complied with the City of Toronto Act spelling out that it's in the best interest of the city and province to work together through cooperation and *consultation*. He just read this section to Basu:
Basu says the province did not have to follow that part of the COTA. The other provincial lawyers are now scrambling to find supporting evidence.
Justice Harvison Young asking about the province's authority now: "Could it abolish council altogether and say we'll have two councillors for . . . and the tie-breaking vote will be held by the Premier?" Basu: "Yes."
J. MacPherson: How many times has the province changed the rules for the election once the election has been begun? Basu is not answering the question directly
Basu now suggesting the May 1 election date is sort of a preliminary date because campaigning doesn't really get heated until after Labour Day (It's true things heat up in September. I would note 220 candidatessigned up to run in 47-ward race by time the news of Bill 5 leaked)
Here is the CBC live feed from court if you want to watch court and constitutional law arguments remotely, which is pretty cool: cbc.ca/news/canada/to…
Basu is now going over the voter parity issue at the heart of the question of effective representation. I won't go into all the details here, but it is covered in this story of the OMB upholding council's decision to approve 47 wards: thestar.com/news/city_hall…
J. MacPherson says he's not sure whether their analysis will be based much on the which process produced a better ward boundary structure (basically, to Basu, move on)
Basu characterizes Belobaba's decision on effective representation as what is good for the federal/provincial governments is not good enough for city (Belobaba noted more than 100,000 residents doesn't allow councillors to adequately respond to residents' grievances)
Now Basu is talking about the "dark side of parochialism in Toronto ward politics." He says smaller wards and more councillors would cause councillors to further respond to individual resident concerns and make council, he says, more dysfunctional
Basu says councillors are not suited to be the point of contact for residents and serve "customer complaint" needs. This is, however, how city hall has long worked - you have a problem, you call your councillor (the role of 3-1-1 has, of course, expanded in recent years)
We are now taking a morning break.
Back from break, Basu (province) is arguing that if you have a pothole in front of your house, you don't complain to your councillor. I think every councillor voicemail/inbox at city hall would suggest the opposite (even if that resident might be better off calling 3-1-1)
Basu is arguing that a right to freedom of expression - including the right to vote - does not guarantee that voter the right to effective representation, that a councillor will better be able to address that voter's concerns
J. MacPherson suggests to Basu now, the change in wards "blew up all speech on the election." Even if Bill 5 was the bomb, as of Aug. 14 when it became law everything was fine? Basu: Yes, that's province's argument. Says client wouldn't agree to language of "bomb" and "blew up"
Basu is moving on to city's argument Bill 5 infringes unwritten constitutional principles. I get into that argument here: thestar.com/news/toronto-e…
Province is arguing that unwritten principles, as they are defined, cannot, on their own, invalidate legislation like Bill 5. This is a very interesting and murky area of constitutional law and I recommend the link above as a jumping off point with links to opinions, judgments
J. Nordheimer asking province now, on its argument the city doesn't have standing to bring Charter arguments, whether the city isn't in the best position to make the arguments central to this case
Sorry all we took a lunch break, but I didn't tell you that. Court is back in 10 min with arguments now from the city
"This case is about democracy and democratic elections," begins city lawyer Glenn Chu, and the values this country upholds about those processes
Chu is outlining that the 2018 campaign began May 1 and many expressive rights were exercised in advance of the province introducing Bill 5 and blowing up that election before the vote itself. "They were not expressive activities for no reason," he says.
J. MacPherson is now sparring a bit with Chu in a good-natured way, asking why he wants to deviate from argument he's already made that unwritten constitutional principles help inform the case that the province infringed candidates' and voters' freedom of expression rights
Chu says, because I'm standing here and you're sitting up there and I don't know exactly what you're going to do, so I'm obligated to walk down every avenue you may explore. MacPherson calls current deviation a "wintry walk in the woods." A lot of chuckles
I believe - and we're in that murky territory of unwritten principles - that Chu is trying to argue that principle itself is enough to invalidate the legislation. As Chu walks down this "wintry path", we are joined by former councillor @jfcampbellTO in the public gallery
I think J. Miller just referenced Avengers by asking Chu if his argument referred to essentially an "infinity stone" but I have not been able to keep up with those movies. I saw some smirks in the court
J. MacPherson is basically telling Chu to move on to his s.2(b) Charter argument (freedom of expression), which the judge notes is what won the city and others the case in the lower court
J. Harvison Young asking about the overriding reality that the city is a creature of the province and does these arguments cast that into doubt. Chu: "Once you've given us the statutory right to a democratic election, it should be democratic." Shouldn't be controversial, he says
On freedom of expression rights, Chu says clearly expression involved in the election campaign. Has there been interference on purpose or by effect? Candidates who spent three months trying to convince people to vote for them who now can't vote for them had their speech nullified
J. MacPherson asking about timing now - would we be here if the province had brought Bill 5 before the election period? Is the infringement worse the closer you get to the election date?
City lawyers arguing the city's 47-ward structure provided for effective representation and the province came in and imposed a 25-ward structure that did not - that 110,000 people on average per representative also infringes expressive rights
J. MacPherson said they aren't used to being on television and think they should stop now so they don't run up against the Raptors pre-game show. We'll be back tomorrow at 10 a.m. and I'll be back with a story shortly #GoRapsGo
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