12 Sept 2018
The need of the recently elected Ford government to invoke
the Notwithstanding Clause is the direct consequence of the incompetence and
irresponsibility of the judiciary.
The fundament right of a citizen of Toronto to freedom of
expression is in no way changed by the fact that the number of city councillors
is 25 or 47. It is absurd to hold otherwise. If there is anyone
inconvenienced by the reduction in the size of Toronto city council it is those
22 who are left without an incumbency. But incumbency is a privilege, not
a right guaranteed them under the Charter.
In taking up a legal case of this nature, there first arises
the question of standing. Is the person bringing the suit actually
harmed? On the face it, the fundamental right to freedom of expression by
an individual is not changed by changing the number of representatives on city
council. An individual is still free to say whatever he or she
wants. But there was no battle for standing to bring suit, and by
accepting the suit, the judge was more than half way along to siding with the
Resistance.
The Constitution Act unambiguously places responsibility for
municipal affairs in the hands of the provincial legislatures. If there
is misgovernance at the city level, it is the responsibility of the provincial
legislature to fix it. In political matters such as these, it is not the
place of the judiciary to second guess the provincial legislature and its
accountable government. That is how democracy works – through elected
representation.
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