Law Times - Newsmakers

A LEGAL battle between the City of Toronto and the province ratcheted up through the courts before reaching its conclusion, and in the meantime, the notwithstanding clause of the Canadian Charter of Rights and Freedoms turned into household chatter. The first salvo was launched after Doug Ford was elected into office as premier of Ontario in June, along with a healthy majority of Progressive Conservative MPPs. In July, Ford said that he planned to introduce legislation that would significantly cut the size of Toronto city council, slashing it to 25 seats from 47 seats. But many critics were not pleased and an up- roar ensued. This included pushback by city council members who expressed dismay with Ford's plans. Rocco Achampong, a lawyer in private practice in Toronto who was also running for a city council seat, decided to fight Ford's bill through the courts. Achampong filed a notice of ap- plication with Ontario's Superior Court of Justice, which challenged the constitutional validity of Ford's plan in the midst of an election cycle. "The rule of law must be defended at all costs," he said in September. In Achampong's application, it said, "Late changes in election rules run the risk of unfairness or, at the very least, the percep- tion of unfairness and, as such, has the effect of diminishing public confidence in the city's democratic process." In the meantime, scores of Canadians voiced their opposition to the plan and others joined the legal challenge. "As lawyers, never accept a conclusion as given," Acham- pong told Law Times. "[A]lways use your training, knowing full well that if it offends you in principle, chances are there is a legal argument to be made." By September, Ontario Supe- rior Court of Justice Edward Be- lobaba ruled that the province's move to decrease the size of city council "clearly crossed the line." "I find that the Province's en- actment of Bill 5 in the middle of the City's election substantially interfered with the municipal candidate's freedom of expres- sion that is guaranteed under s. 2(b) of the Charter of Rights," said the ruling in City of Toron- to et al v. Ontario (Attorney General), 2018 ONSC 5151. Belobaba found "the reduc- tion from 47 to 25 in the num- ber of City wards and the corre- sponding increase in ward-size population from an average of about 61,000 to 111, 000 substan- tially interfered with the munici- pal voter's freedom of expression under s. 2(b) of the Charter of Rights, and in particular her right to cast a vote that can result in effective representation." "I further find on the evidence filed by the parties that these breaches of s. 2(b) cannot be de- monstrably justified in a free and democratic society and cannot be saved as reasonable limits under s. 1 of the Charter of Rights," said the ruling by Belobaba. But Belobaba's ruling wasn't the final word. In response, Ford said he would invoke s. 33 of the Charter of Rights and Freedoms, other- wise known as the notwithstanding clause. The province also said it was appealing Beloba- ba's decision. Carissima Mathen, a professor of law at the University of Ottawa, said in September that the province would likely succeed in its efforts. "It is, of course, possible to challenge the law on other grounds [that] are not subject to the Charter, but it is very unlikely that's going to happen before Oct. 22," Mathen says. "I don't see much room of further challenge of this in the courts. You could try and argue that the use of the notwithstanding clause itself is somehow deficient, but the Su- preme Court [of Canada] has indicated that the legislature has a pretty broad brush when it comes to the notwithstanding clause." Later that month, a panel of judges from the Ontario Court of Appeal delivered a new ruling and set aside Belobaba's decision. "The application judge was understandably motivated by the fact that the timing of Bill 5 changed the rules for the election mid-campaign, which he perceived as being unfair to candidates and voters. However, unfairness alone does not establish a Char- ter breach. The question for the courts is not whether Bill 5 is unfair but whether it is unconstitutional. On that crucial question, we have concluded that there is a strong likelihood that application judge erred in law and that the attorney general's appeal to this court will succeed," said the decision. "It is not in the public interest to permit the impending election to proceed on the basis of a dubious ruling that invalidates legislation duly passed by the Legislature," it later added. The final result meant that on Oct. 22 the election for Toronto's city council took place, with 25 wards. Province and city battle over council size Notwithstanding clause becomes mainstream conversation BY GABRIELLE GIRODAY AND ANITA BALAKRISHNAN, LAW TIMES top stories Rocco Achampong says the 'rule of law must be defended at all costs.' THE POWER OF PERSISTENCE: MEDICAL MALPRACTICE LITIGATION No matter how challenging, complex or costly the case may be, we will not stop in our pursuit of justice. READ HOW SOME OF OUR CASES ARE ADVANCING THE LAW: Surujdeo (2017 ONCA 41), and Stirrett (2018 ONSC 2595). 416-599-1700 | BOGOROCH.COM REFERRALS HONOURED AND APPRECIATED 150 KING STREET WEST, SUITE 1901 TORONTO, ONTARIO M5H 1J9 Bogoroch_LT_Oct_18.indd 1 2018-10-18 10:24 AM 2018 top news, newsmakers and cases 17

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