Toronto’s mayoral by-election kicked off on Monday and concludes on June 26. But what happens between now and then might not matter so much, since the next mayor of Toronto could simply end up being whoever Ontario Premier Doug Ford says it will be.
That he has nearly unlimited authority to interfere in the election — or even handpick a victor — was confirmed by the Supreme Court of Canada in 2021 after the City of Toronto took Ford and his Progressive Conservative government to court to challenge his draconian move to chop the City Council in half in the middle of the 2018 municipal campaign.
Lawyer Don Eady was an intervenor in the case on behalf of Progress Toronto. He says he has concerns about the upcoming by-election and the possibility of Ford’s interference. “I wouldn’t rule that out at all,” he told Ricochet.
The 2021 case, which reduced the number of wards in Toronto from 47 to 25, was challenged by a number of groups and organizations, and ultimately the Supreme Court’s slim five-to-four decision ruled Ford’s move constitutional, setting an important precedent.
Through this ruling, the court made it clear in no uncertain terms that provinces have virtually complete and total authority over municipalities. As the majority decision stated, “Subject to the Charter, a province…has absolute and unfettered legal power to legislate with respect to municipalities.”
Whereas in her dissenting opinion, Justice Rosalie Abella wrote, “By radically redrawing electoral boundaries during an active election that was almost two-thirds complete, the legislation interfered with the rights of all participants in the electoral process to engage in meaningful reciprocal political discourse.” (Emphasis in original.)
Eady says that if someone asked him in 2018 if a premier would interfere with rules mid-election, he would have said no. But since the Supreme Court decision, the strong mayor powers, and Ford’s liberal use of the notwithstanding clause, he says he “wouldn’t lay money” on Ford keeping out of Toronto’s affairs.
While the constitution guarantees democratic rights with regard to provincial and federal elections, “those rights do not extend to municipal elections or elections other than federal or provincial,” says Eady.
"All bets are off," he says. If it happened before, it can happen again.
John Sewell, mayor of Toronto from 1978 to 1980, says the Supreme Court decision is an attack on municipalities. “There’s no question that the Supreme Court has basically taken all the possibilities away from municipal government in Canada.”
Sewell worries about the potential for interference in the upcoming byelection, citing Ford’s history of making decisions without consultation or notice. “For all I know, he will do something.”
Tim Abray, Queen’s University instructor in the department of political studies, says there is legally nothing preventing Ford, or any other premier, from interfering in municipal politics. “On paper, it’s just absolutely true, if you’re completely cold-blooded about it,” he says.
“It is completely within the province’s power to name an administrator to run a municipality.”
Any actual opportunity for the left?
Since former Toronto mayor John Tory announced his decision to resign, much has been made in the media, and in political circles of every stripe, about the opportunity for a progressive or liberal candidate to win the by-election.
Ford himself made his opposition to a “lefty mayor” clear in recent public statements, calling the idea “a disaster” and saying that the new mayor should be “fiscally responsible.” Last week he told Torontonians that he doesn’t think they should vote for candidates “who support defunding the police,” just days after promising to “stay out of” the mayoral race.
Regardless of Ford’s comments, and his past behaviour in general, the Supreme Court’s decision looms large over the mayoral by-election.
Eady believes it was the possibility of a “progressive majority” sweep in 2018 that was a motivating factor for Ford to cut the size of Council in the first place. He saw a number of key city wards losing their incumbents, and the field opening up for young new councillors.
“There’s no doubt in my mind that he doesn’t want a lefty mayor in the mayor’s chair, because it’s going to make his life more difficult politically,” Eady says. “He’d prefer to have somebody that sees things more the way he does, more from a conservative perspective like Mayor Tory, as opposed to the former mayor, David Miller, who would have been largely perceived as a progressive mayor.”
Municipal democracy is simply not guaranteed in Canada
Section 3 of Canada’s Charter of Rights and Freedoms states that “Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.” This does not apply to municipalities. There is no constitutional right to vote for city government.
But Eady says that Ford’s decision infringed on “unwritten constitutional principles.” In his arguments to the Supreme Court, he says this made Ford’s move unconstitutional.
Fundamentally, he says, there are generally accepted democratic principles: concepts like the rule of law, protection of minorities, and democracy, which may not be explicitly inscribed in constitutional documents, but which play a role in the decision-making process.
“There’s no doubt that those principles in the minds of the Supreme Court of Canada exist,” Eady says. “The question is whether or not those unwritten constitutional principles could be used to strike down legislation.”
Unwritten principles have been recognized by the Supreme Court of Canada in the past, specifically in the ruling on the legality of Quebec’s 1995 secession referendum. Addressing the concept, they wrote, “The Constitution also ‘embraces unwritten, as well as written, rules.’”
However, in its October 2021 decision, the Supreme Court found that these did not apply in the context of municipal democracy, because there is no constitutional right to vote for municipal office in Canada.
Since the right to a democratic process for Canadian municipalities is explicitly at the whim of a provincial government, Ford’s comments on the possibility of a progressive mayor being “a disaster” take on new connotations.
During the press conference where he promised that he wouldn’t rescind “strong mayor” powers should a leftwing candidate win, he praised a democratic system that replaces politicians every three or four years: “That’s what I love about democracy.”
Sewell rejects Ford’s assertion that he loves democracy, pointing to his many undemocratic legislative decisions, specifically Bill 23, the More Homes Built Faster Act, which unlocks development of the Greenbelt.
“He brought that bill in after the municipal elections, but before the new councils were confirmed. So not one single council was able to actually voice its opinion on that legislation.” Sewell says the move was deliberate, and an attempt to quash open debate.
In a democracy, Sewell says, open discussion and debate are the goal, with a majority vote being the deciding factor in decision-making. “He’s not willing to have that happen.”
Controlling the strong mayor
Since first becoming premier in 2018, Ford has been hostile to municipal democracy, Sewell says, pointing to the “strong mayor” powers implemented in Toronto and Ottawa that give their mayors unprecedented authority.
In addition to the ability to unilaterally craft budgets and hire senior city officials, the powers also give mayors of Ottawa and Toronto veto power over legislation that can only be overturned with a two-thirds majority vote. Conversely, they can pass certain bylaws with the support of just a third of council.
Sewell says these powers disrupt the concept of majority rule that is generally accepted in democracies, even if it isn’t etched in constitutional law. “[Majority rule] wasn’t in the Charter of Rights and Freedom because I think everybody just assumed it.”
He’s spoken to three lawyers about filing legal challenges to the strong mayor powers, but because of the Supreme Court’s ruling on Ford’s municipal interference, all three told him there’s no legal grounds to challenge them.
Sewell believes the solution for Toronto is to work towards making it a charter city, given its size and contribution to the country. This would mean the adoption of a constitutionally protected charter for Toronto and other large Ontario municipalities that want one. According to Charter City Toronto, a charter would assign greater autonomy, new sources of revenue, and protection from undue provincial interference in local affairs.
Charter cities operate more independently, and Sewell says they are usually more progressive in legislation when divorced from the wider suburbs. He points to progressive policies passed by charter cities like Seoul, Buenos Aires, and Tokyo.
As for the political will, Sewell says he doubts there’s an appetite for it, and not just among Ford’s PCs. “I’m not sure any other government wants to do it, either.”
While this could be a possible improvement for Toronto specifically, the nation-wide state of municipal democracy would remain unaffected.
Meanwhile, a constitutional fix for the lack of municipal democracy in Canada is also unlikely to happen. Abray says that it would “theoretically” be possible to add municipalities to the Charter, but it’s “the next closest thing to impossible.”
Abray says, in his view, a focus on the technical details of the law neglects the bigger picture. In terms of municipal democracy, he believes the low participation rate deserves more scrutiny. From the latest voting numbers in Ontario’s municipal elections, most people are “pretty close to fully disengaged from municipal politics.” He says there have been vigorous discussions in the political scene about the legitimacy of a system with such a low electoral turnout and that the focus should be there.
But if the province and courts don’t believe in civic democracy, is it any surprise that voting habits would echo that?
Eady worries about the future of municipal democracy since the Supreme Court decision. “I don’t think it’s great. When you lose things like local democracy, which I think we’ve lost somewhat… I think that lessens people’s belief in the democratic process, and that’s not a good thing.”