Tuesday, September 11, 2018

A Note On First Reading Belobaba J. On Reducing Toronto City Council

To some friends:

Just read his reasons, albeit not with laser like focus. 

I can see where on the ground of timing he has an arguable line of reasoning, though the argument seems strained to me. I can see the fundamental unfairness of the province changing the rules of the game in the middle of it but I have trouble seeing how the “legal pigeon hole” for that is the curtailment of the candidates’ right of expression. It feels to me that there’s a better way legally to conceptualize that fundamental unfairness. But maybe not: on first blush I can’t think of what principle to root that fundamental unfairness in. So maybe 2b is the best way to go.

I have more trouble on a more meta level with the ground of denying voters effective representation as an incident of freedom of expression. 

It may well be that Belobaba has the law on his side. He distinguishes this case from the amalgamation case—where the same argument on an unconstitutional curtailment of the right to vote, “effective representation,” as an incident of freedom of expression was made—on the basis that there Ontario led evidence that amalgamation didn’t hobble effective representation while here only the applicants led evidence, the study he cites, while, unlike in the amalgamation case, Ontario led no evidence at all contra the study. (Or if it did, I missed any reference to it. I did for now skip over the section 1 analysis. I’ll get to that later.) 

So it’s hard to fault Belobaba’s reasoning on ground two. The law seems to be that under the Charter, the court has a role to play in ensuring on evidence that electoral systems in fact provide effective representation. On this point, as I have it, Belobaba had a study as to the 45 wards compared to no evidence from Ontario. 

What’s a judge to do?

My difficulty with ground 2 at a more meta level is the notion of courts, short of something egregiously extraordinary, which 45 down to 25 doesn’t seem to be, imposing policy considerations under the umbrella of legal doctrine on the legislature with respect to systems of representation. I already noted the smaller city councils in two other big cities, LA and London. 

On this more meta basis I have some sympathy with the use of the Nwst Clause, as Blatchford argues. 

It does seem to me as a side observation that the city way out-lawyered the province....

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