Ontario uses constitutional ‘notwithstanding’ clause to enact Bill 5, Better Local Government Act, 2018

The Superior Court of Ontario has set aside provisions of Bill 5, Better Local Government Act, 2018 that would re-district Toronto’s 2018 election boundaries from a 47-ward system to a 25-ward system.

The Court found that these provisions breached the Canadian Charter of Rights and Freedoms and that these breaches were not reasonably justified. In doing so, the Court ordered that Toronto will return to its previously-planned 47-ward system on October 22nd.

In response, Premier Ford announced that he will recall the legislature in order to exercise the notwithstanding clause to ensure that the Bill 5 provisions remain in effect (and that the 2018 election would take place under the legislated 25-ward system) despite the court’s ruling. This new Bill, which will likely pass due to the Progressive Conservative majority in the legislature, will be immunized from Charter scrutiny for a 5-year period. This would represent the first time that Ontario has invoked the notwithstanding clause.

While this new Bill would likely permit a 25-ward system for the 2018 election, Premier Ford has also indicated that the Province will be filing an appeal of the Court’s decision. There has not been a court date set for this matter.

Impact on Municipal Election

The Province’s intention to invoke the notwithstanding clause means that it is virtually certain that the 2018 Toronto election will be conducted under the 25-ward system, which will result in a number of anticipated incumbent-vs-incumbent battles. As discussed in a previous bulletin on this issue, this will likely result in the Mayor and his or her appointed Executive and Deputy becoming the key voting bloc at Council. This bloc, which currently accounts for about 20 percent of Council, would expand its share greatly, to approximately 35 percent. In effect, Toronto will have moved dramatically towards a Strong-Mayor system.

These developments also greatly increase the potential uncertainty about the expected makeup of council. Under a 47-ward system, we anticipated an increase of the power of the left-of-centre on City Council, which could be curtailed due to the new ward boundaries. This bloc would go from an expected 40 percent of Council following the election, down to a mere quarter under the proposed new boundaries. Conversely, a backlash against Doug Ford could lead to high turnout among progressive voters, leading to an “orange wave” at the municipal level.

At this stage, we have modeled three potential outcomes for the Toronto municipal election:

  1. Tory wins mayoral race and has a strong majority on council
  2. Tory wins mayoral race and has a working majority on council
  3. Keesmaat wins mayoral race and has a working coalition on council

These three scenarios would result in very different impacts on municipal policies, and we will continue to monitor their respective likelihoods, while planning for each eventuality.

Provincial Policy Impact

While making the announcement that he would invoke the notwithstanding clause, Premier Ford indicated that he would be open to using the clause again as future issues arise. This represents a fundamental shift in the way that the notwithstanding clause is viewed by governments in Canada outside of Quebec. It reflects a willingness by Ford to govern outside of existing norms. Further developments will help establish what this means for the legislative agenda of the Ontario government, as well as its impact on the activities and rhetoric of other provincial governments.

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