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Blog December 19, 2022

Strong Mayor, Weak Democracy

Much criticism has been aimed at Toronto mayor John Tory and Ontario premier Doug Ford over the unprecedented powers given to Tory and to all future mayors of Toronto by the provincial legislature. Since Toronto has in recent years had such mayoral luminaries as ‘don’t want to be boiled in a pot by cannibals’ Mel Lastman as well as crack-using Rob Ford, one can only wonder what ‘evidence’ was gathered to support giving Toronto mayors additional powers.

The Ford government calls the new powers the ‘strong mayor’ system, which suggests that it is inspired by US cities such as Chicago. But although some US cities do have mayors with CEO-style powers, American cities are less dependent on the state than is the case in Canada, especially in Doug Ford’s Ontario.

The phrase ‘strong mayor’ is American; but the new powers are copied not from US local government but from the for-profit business world. The CEO of a company such as Rogers (where John Tory was CEO and still plays an advisory role earning him $100k per year) can hire and fire executives, as John Tory has reportedly started to do by hiring a new city manager without council input. 

Democracy is in peril around the world. Democracy can be frustrating because it runs from the bottom up, not the top down. It is therefore messy by design. Democracy moves slowly, through conversations and iterations. If efficiency and speed were the main objectives of politics, then a dictatorship would be in order. Mussolini may indeed have made the trains run on time, for all I know.

But the new ‘strong mayor’ law does not in fact make Mayor Tory, much less the city, strong where it counts. The bylaws that need only one-third of council to pass are those that promote “provincial priorities”. Paving over the Greenbelt is a key provincial priority now; but in the city of Toronto, already mainly paved over, the new powers will enable John Tory to hire a chief planner who thinks that Toronto needs more 80- or 90-story buildings. Maybe this won’t happen, but it’s not at all impossible.

The timing of the provincial law is also worth noting. In the municipal election of October 2022, which ended the day before the ‘strong mayor’ law was introduced in the legislature, Toronto voters elected a more diverse council than ever.

It is the citizens who elected new councillors–as well as those who re-elected most sitting councillors–who are the real losers in Doug Ford’s legislation. Their votes are now more worthless than ever. Why bother informing oneself about council candidates when Tory or a future Mel Lastman can draw up the city’s budget, hire and fire top executives, and push through bylaws that have only one-third of council in support?

Doug Ford’s initial attack on local democracy came right after he won his first majority in June 2018. Without even token consultation, he cut the size of Toronto city council from 47 to 25 – just when the nonprofit, Progress Toronto, had trained and supported many progressive and diverse council candidates. Now we have chapter 2 of the attack on local democracy.

Knowing that I am an expert on municipal law, during the last week or two several people have asked me: Can’t we go to court to question the ‘strong mayor’ powers?

But the prospect of winning such a court challenge is very dim. The reason is that now we have several judges on the Supreme Court who act as disciples of the US Court’s Clarence Thomas, who thinks that because abortion was not mentioned in the original US constitution there cannot be constitutional reproductive rights.

The 2018 Ford move of cutting Toronto city council in half was eventually approved by the thinnest majority at the Supreme Court. Five judges said that provincial governments can do whatever they want to municipal governments. Their rationale was that since the British North America Act of 1867 does not say municipalities are governments, and section 3 of the Charter only guarantees fair elections at the provincial and federal level, there is no legal right to free and fair local elections, and the province’s power to restructure or abolish municipalities is “unfettered”.

I doubt those same five judges would say that one can’t sue for a car crash injury because cars did not exist in 1867 and are not mentioned in the Charter. All textualism is selective, as we know from fights about the Bible amongst Christian denominations. The judges on Canada’s top court have no trouble with novelties such as car crashes or same-sex marriage, but five of them become textualists when deciding that premiers, even if elected with 40% of the 43% of people who went to the polls (Ford’s vote in the most recent Ontario election) have total control over municipalities because municipalities are not specified as governments in the 1867 BNA Act, which was solely concerned with dividing power between the feds and the provinces.

Canadian law students everywhere are taught that the constitution is a ‘living tree’ rather than set in stone; but some Supreme Court of Canada judges didn’t get the memo.

Unfortunately, Ford’s 2018 attack on local government was seen by many as a Toronto-specific issue. Few noted that at the time that Ford cut Toronto council in half, he also replaced some elected positions in the GTA (the chairs of two regional governments) by appointed positions. Those anti-democratic moves were never challenged in court.  

But just because only Toronto went to court against Ford’s first attack on local democracy does not mean that other municipalities are safe. The Supreme Court’s majority decision in the Toronto vs. Ontario case boosted the power of all premiers, not just Ontario’s, and diminished local democracy from sea to sea to sea.

What Canada needs is to make all municipalities legally and financially stronger. If municipal governments could do more, instead of having to run to the legislature for every little thing, more people would vote and more qualified people would run for council. Local elections would be more lively and democracy would benefit. Which is the opposite of what is happening in Toronto and could happen elsewhere in Canada.