Cut from an intended 47 wards to just 25, this Monday’s municipal election will look markedly different to elections past. Many incumbent councillors, who usually see a 90% re-election rate, have been forced to run against each other to win the support of new constituents. The mayoral race, while technically having over thirty candidates, has amounted to a small, anticlimactic race between incumbent John Tory and former Chief Planner Jennifer Keesmaat.

Overshadowing the entirety of the election is Bill 5 – also known as the Better Local Government Act – which Premier Doug Ford introduced in July to reduce the size of city council by almost half.

This decision turned the city on its head and has fundamentally altered the nature of Toronto’s democracy. It has left many Torontonians wondering how the Premier was able to make such a drastic decision unilaterally.

The fact is that very few cities are in a position to have this kind of decision imposed on their own affairs. Canadian cities are frequently referred to as “creatures of the province” for the very reason that they are subject to the whims of their provincial governments. The introduction of Bill 5 has highlighted this very nature of the relationship between cities and their governments in Canada, which has been as criticized as the Conservative government itself. Some Torontonians, and even mayoral candidate Jennifer Keesmaat, brought up the topic of secession: the process by which Toronto would make itself independent from Ontario and take control of its own affairs. Keesmaat later retracted this sentiment as the possibility of secession is slim to zero. That said, other Canadian cities have managed to secure more autonomy than Toronto currently possesses.

So, is there a way for Toronto to secure more autonomy from the province? And how do other cities, both in Canada and beyond, exercise and secure autonomy over their own affairs? This article is meant to explain how the legal standing of the City of Toronto allowed Doug Ford to do what he did, and to examine the ways in which other cities manage their own affairs.

In time for the election, here’s a recap of all the decisions and battles that enabled the 25 ward election to take place.

Bill 5: Justifications and Reactions

Premier Ford announced that his government would introduced legislation to reduce the size of city council by half on July 27, just hours before the registration deadline for candidates and less than three months before the election itself. Ford criticized the council as dysfunctional and slow-moving, insisting that a reduced number of councillors would expedite action on pressing issues in the city. This announcement was followed by the introduction of Bill 5, the Better Local Government Act, on July 30th. The Bill reduced the number of councillors by redrawing the wards to match the federal and provincial ridings, leaving the council 43 percent smaller than it sits now. In addition to reducing Toronto’s city council, the Bill also cancelled regional chair elections in Peel, York, Niagara, and Muskoka. The Bill was sped through parliament and passed on August 14th.

Under the 44 ward system which Toronto previously operated under, each councillor represented approximately 63,000 Torontonians. The new system creates wards of 112,000 people, greatly reducing the ability for councillors to connect with their constituents.

While Ford’s rhetoric surrounding Bill 5 largely focused on the shortcomings of the council itself, the explicit reasoning behind the Bill was economic. Ford estimated that the cuts would result in $25 million in savings over four years, and that taxpayers would rather see this money redirected into topical city issues than politicians’ paychecks.

While $25 million may seem significant, it comprises a meager 0.2% of the city’s $11.8 billion budget. Over four years, it works out to about $6.25 million per year, or $2.25 per Torontonian per year. Additionally, many have questioned the accuracy of the projected savings. While the salaries of the removed councillor positions would be eliminated, some have predicted that the remaining councillors will need to hire more staff to cover the increase in responsibilities. Others have argued that any short-term savings will be greatly outweighed by the long-term costs of having fewer councillors working to improve the city and meet with residents. Ultimately, the opposition to Bill 5 runs much deeper than the economic argument. Politicians, lawyers, advocates and citizens have all expressed outrage at the fundamental violation of democracy that the Bill espouses not only in Toronto but in the province at large.

Though some city councillors supported the cuts, the majority of sitting councillors are in opposition, including Mayor John Tory. The council decided to challenge Bill 5, voting 27-15 in favour of bringing the matter before the Ontario Superior Court. Council centred the argument on the fact that the legislation was passed during the campaign period, a move which they argued endangered the integrity of the election and the ability of candidates to adequately campaign. Beyond campaigning, it also required city staff to determine new voting locations, reallocate staff, and produce materials to inform voters of the ramifications of this decision—a large task to accomplish in two month’s time. The Province argued that its decision was purely one of policy, and one that was within the scope of its powers.

A now infamous series of events ensued. Superior Court Justice Edward P. Belobaba ruled in favour of the City and deemed the Province’s invoking of Bill 5 unconstitutional, violating section 2(b) of the Charter (freedom of expression). Specifically, he cited the timing of the Bill as interfering in candidate’s freedom of expression through campaigning, and said that the redrawing of wards changed the ratio of councillors to residents in a way that interfered with the ability of citizens to “cast a vote that can result in effective representation.”

While Justice Belobaba’s decision was celebrated by many in the city, the legal reasoning underlying the decision was questioned. Many legal scholars argued that invoking section 2 to protect “effective representation” went beyond its scope, and that any possible Charter violation would occur under section 3 (democratic rights) which does not apply to municipalities. The Province appealed the verdict, but also took much more drastic measures in the interim.

Premier Ford announced his plan to invoke the notwithstanding clause to override Justice Belobaba’s ruling on September 10. The notwithstanding clause allows federal and provincial governments to override Charter rights for five years. The clause has never been invoked in Ontario, and has only been invoked a handful of times in other provinces. Ford’s announcement sparked outcry and protests across the country.

The clause, however, was never invoked. The Ontario Court of Appeal granted a stay on Justice Belobaba’s ruling, deeming it “dubious” and ordering the city to proceed with the 25 ward election. The stay made the use of the notwithstanding clause unnecessary, and resulted in Toronto proceeding with the 25 ward election.

The city is in uncharted territory, and the cut leaves the composition of city council largely unknown. Many incumbent councillors are now facing off against each other—22 incumbents are now competing in 11 wards. Other councillors who intended to pursue re-election dropped out of the race in the midst of the Bill 5 chaos.

The new council is also set to be even less representative than its predecessor. Currently, only 14 of Toronto’s 44 councillors are women. Even more troubling is the fact that 4 of the 9 female incumbents running for re-election are running against each other, while 3 are running against incumbent male councillors. Many advocates have voiced concern that the council cuts will not only decrease representation for women but for other minority groups who are currently underrepresented on the largely white, male council.

While Bill 5 may not be unconstitutional, it still feels fundamentally unfair. It disrupted an election, reduced representation, and was ultimately created by an individual who was nowhere near elected by the majority of Torontonians. But as long as Toronto remains a “creature of the province,” the provincial government has the right to pass almost any law within it, even ones that are, in the words of Justice Belobaba, “draconian.”

Can we only be a creature of the province?

Toronto is in its current position because of the way cities are incorporated into Canada’s Constitution. Canada’s largely rural population in 1867 made the delegation of municipal authority to the provinces logical. As a result, however, cities in Canada technically have no inherent powers and must act in accordance with their province.

Despite this constitutional restriction, some cities in Canada have been granted additional authority and independence by their provincial governments. Cities in the province of British Columbia, for example, have a much broader scope of authority. British Columbia has a sort of “Bill of Rights” for cities in which the provincial government acknowledges the independence of local jurisdictions.

Even in these cases of greater self-governance, all cities remain under the jurisdiction of their provinces in the Canadian Constitution. This means that any laws granting extra power to cities could be altered or repealed at any time under the whim of a provincial government.

In the United States, all cities have high levels of independence. While municipal law cannot contradict federal or state law, cities are not subject to the decisions of state governments. Municipalities in the US can apply directly to the federal government for funding, and almost all have charters that enable cities to govern their own affairs. These municipal freedoms are largely the result of American individualism and the fact that many American cities were well-established prior to the creation of the American Constitution. The County of Los Angeles is a particularly good example of this. It has a charter which grants the city the power to levy taxes and distribute income, and the city has also created borough councils to increase representation and civic engagement.

Unfortunately, there is little Toronto can do to change its standing in Canada. Secession from the province is nearly impossible; every provincial legislature would need a majority to vote in favour of the change for Toronto to change its standing in the Constitution.

The best way for Toronto to fight for its democracy, autonomy, and authority is to support politicians who will treat the city as having control over its own affairs. This starts with voting for city councillors who both actively oppose Ford and have promised to fight for a return to the 47 ward system. It also means taking action in four years to shut Ford and his conservatives out of provincial government. On October 22, Torontonians can make a decision about the kind of city they want to see, and the councillors they want to speak, act, and fight on their behalves.

Vote—show Premier Ford that Toronto’s democracy is not so easily dismantled.