The clause is contained in section 33 of the Charter of Rights and Freedoms in the Canadian constitution. "The current gridlock has crippled Toronto City Hall and we'll replace this broken system where transit, infrastructure and housing can not get built", said Ford. He added that the Tory government will use "every tool at our disposal" to uphold the constitution and democratic rights of the people of Ontario.
Speaking to reporters after the ruling, Toronto Mayor John Tory said he welcomed Belobaba's decision. Nevertheless, Belobaba argued "there is no principled reason why in an appropriate case the (right to "effective representation" under Section 3) can not inform other related Charter provisions such as the voter's right to freedom of expression under Section 2 (b)" in a municipal election.
"The province has clearly crossed the line", said Belobaba.
Tory has previously said that he had a brief conversation with Ford about slashing the size of city council but "didn't take it seriously" at the time because it was "put forward in the category of musing".
"As you introduce changes you increase the likelihood of error", he said. "It's an uphill struggle but that doesn't mean that something won't be found or that some advice won't be offered when we meet on Thursday". "I would urge PC MPPs to vote against the use of it", said Tory.
In his ruling, Justice Edward Belobaba declared that the move violated the free-expression guarantee in the Charter by changing the rules mid-campaign.
"Here", he wrote, "there is no evidence that...any consultation ever took place".
"The government must play by the rules and must stop causing chaos in municipal elections", Michael Coteau, Mitzie Hunter and Nathalie Des Rosiers said in a joint statement issued on Monday. Belobaba called Bill 5 "profoundly unfair" and found that nothing the government's lawyers had presented could reasonably explain why the 47-ward election for a city of almost 3 million people needed to be cancelled by legislative fiat.
Unhappy with the court decision, the Progressive Conservative government said hours later that it would invoke the rarely used notwithstanding clause to override the charter and go ahead with its plan to reduce council to 25 members, down from 47. It is an election campaign, one of the most fundamental foundations of our democratic system. But the premier said Monday that he was elected on a mandate of making the province more efficient.
Coun. Mike Layton said he hopes the ruling serves as a "lesson" to Doug Ford and his government. Although its use is often said to amount to "overruling the Charter", that's not technically correct: it's a part of the Charter, included as a compromise measure to ensure provincial support for the document's adoption in 1982. "This would seem to be relatively narrow but it would set a really unsafe precedent".
As the now retired Harvard law professor (and Canadian) Paul Weiler once said about the then-new Charter, "Canadian legislatures were given the final say on those rare occasions where they disagree with the courts with sufficient conviction to take the political risk of challenging the symbolic force of the very popular Charter". For good measure, he dismissed the judge as a Dalton McGuinty appointee - even though Superior Court justices are named by the federal government, not the province.
Opposition NDP leader Andrea Horwath affirmed that "democracy includes an independent judiciary" and described Ford's move as a "personal vendetta against his political enemies at City Hall".
Ward 14 Councillor Gord Perks said the city's lawyers understand it would be "ridiculous" not to re-open the nominations because they had published a nomination date and closed it without notice.
She called the decision to invoke the notwithstanding clause "irresponsible". He also said it would save $25 million.
"This is a unsafe sign of what this government is willing to do", he said. Paula Fletcher said if the Ford government invokes the notwithstanding clause, they would be a "laughing stock" in Canada.
For Prabha Khosla, an advisor to Women Win T.O., the decision restores the opportunity to finally achieve a Council that is as diverse as the city it represents.
- with files from Michelle McQuigge.