Ford's attack on Toronto is good news

[Acajack]

Originally Posted by once

"freedom of democratic expression" is really pushing it. "i am free to express myself democratically however i feel"? which implies Toronto is beholden to 47 councils for what reason exactly?

there is no defending this court decision.



How is lack of evidence of a dysfunctional city council (what would that even entail?!?) a "constitutional problem"? "Evidence of required urgency"? Why would either evidence be necessary for this decision? This guy is working from the starting point that he doesn't like the decision, and making up reasons why it violates the constitution. That isn't the way a judge needs to think.

There is absolutely zero "freedom of expression" violation here. If you can't justify a court decision on the basis of constitutional democratic protections as they exclusively pertain to the domain of elections - then you can't rule against the decision. Too bad, you might not like it, but that's your job as a judge.

The worst part is he is forcing Ford's hand to use the NWC, since he couldn't defend his decision using any sane section of the charter.

I latched (j'ai accroché) onto these parts of the decision as well.

I am not a legal scholar but have quite a bit of experience personal and professional with both laws and rulings, and this type of reasoning strikes me as very odd. Even inappropriate I'd say.

[acottawa]

Originally Posted by kwoldtimer

Odd conflation of civil remedies (still to come, I suspect) and a Charter challenge. Chalk and cheese. One may disagree with the Belobaba decision, but the reality is that the challenge was successful, so even if were reversed on appeal it was not unrealistic to follow that route.

In fact, many Charter challenges are unsuccessful. That doesn't mean that they should not have come before the court.

I think the conflation was by the judge (to the bafflement in seems of most constitutional law experts). He justified his decision with things that should have been heard in civil court.

[kwoldtimer]

Originally Posted by acottawa

I think the conflation was by the judge (to the bafflement in seems of most constitutional law experts). He justified his decision with things that should have been heard in civil court.

Hazards of a "quick and dirty" judgement. Although to the extent that it details some of the practical consequences of the violation of freedom of expression, it doesn't strike me as completely out in left field (so to speak!).

[Pavlov]

Originally Posted by Acajack

I latched (j'ai accroché) onto these parts of the decision as well.

I am not a legal scholar but have quite a bit of experience personal and professional with both laws and rulings, and this type of reasoning strikes me as very odd. Even inappropriate I'd say.

Once the applicants established a prima facie infringement on their Charter protected right, the persuasive and evidential burden shifted to the province to prove that such infringement was justifiable in a free and democratic evidence.

Also, it's not the cost of election signs that is the issue here. It's the interference with the expressive purpose of the signs.

[Acajack]

Originally Posted by Docere

Bill Davis has come out against the use of the notwithstanding clause:


https://tvo.org/blog/current-affairs...tanding-clause

Why did Davis and the other architects of 1982 speaking out right now include the NWC if they did not want anyone to use it?

[acottawa]

Originally Posted by kwoldtimer

Hazards of a "quick and dirty" judgement. Although to the extent that it details some of the practical consequences of the violation of freedom of expression, it doesn't strike me as completely out in left field (so to speak!).

It is a pretty significant modification of what "freedom of expression" means, in a way it has never been used in Canada or internationally. Certainly if it is upheld there will be all sorts of challenges to all sorts of electoral laws.

In my reading the Justice decided he didn't like the law, listed the reasons he didn't like it and then tacked on the Section 2 violation, which is not how constitutional law is supposed to work.

[kwoldtimer]

Originally Posted by acottawa

It is a pretty significant modification of what "freedom of expression" means, in a way it has never been used in Canada or internationally. Certainly if it is upheld there will be all sorts of challenges to all sorts of electoral laws.

In my reading the Justice decided he didn't like the law, listed the reasons he didn't like it and then tacked on the Section 2 violation, which is not how constitutional law is supposed to work.

If so, it will be overturned on appeal. If upheld, he will have advanced our freedom. This is how things are supposed to work, imho. Our Constitution is very much a living document.

[rousseau]

Originally Posted by Pavlov

Once the applicants established a prima facie infringement on their Charter protected right, the persuasive and evidential burden shifted to the province to prove that such infringement was justifiable in a free and democratic evidence.

Also, it's not the cost of election signs that is the issue here. It's the interference with the expressive purpose of the signs.

This seems crystal clear to me. Ford is going to extraordinary lengths to interfere with a local election. Now the Tories are going to change the rules of procedure at Queen's Park to prevent debate and delays by the opposition.

This is all incredibly dangerous.

[lio45]

Originally Posted by acottawa

It is a pretty significant modification of what "freedom of expression" means, in a way it has never been used in Canada or internationally. Certainly if it is upheld there will be all sorts of challenges to all sorts of electoral laws.

Exactly. It's a "everything we know breaks down" interpretation of freedom of expression. That judge is completely out on left field. I wasn't kidding when saying that by those standards, the City of Sherbrooke violated my freedom of expression by eliminating my municipal ward against my will last year. (And as discussed with niwell earlier, yes, I could be the loony guy taking the City to higher courts to try to force it to reinstate my ward; in which case I'd likely become known locally as that anal annoying idiot with way too much free time... but it's something I _could_ do (I'd lose, but I can try, that's the beauty of our judicial system.))

[once]

Any interference preventing politicians from being elected is now a constitutional violation. #MeToo allegations? Disobeying party rules? Everybody's hands are tied.

Those signs need to be protected under freedom of expression laws.

Politicians are now a protected class. "Some people are more equal than other people".

Or maybe we can argue that anyone who buys a sign for any reason now has constitutional protection to ensure the reason they bought that sign stays consistent. After all - no one has answered my question - what is so god damn special about elections that we specifically need to protect politicians by invoking some special class of "freedom of expression" that only applies to them?

This is exactly why the NWC was needed.

[lio45]

Originally Posted by Pavlov

Once the applicants established a prima facie infringement on their Charter protected right

Thing is, they did not do that. Not to reasonable standards, anyway. Their "having established it" all hinges on the opinion of ONE single judge, and judges can err.

[lio45]

Originally Posted by rousseau

This seems crystal clear to me. Ford is going to extraordinary lengths to interfere with a local election.

That's the kind of thing that happens in winner-takes-all systems when 40% of the population chooses to vote for a petty bully.

You're suggesting... electoral reform, it seems. (I don't disagree, the problem is that politicians who get majorities all suddenly decide they now like FPTP for some reason.)

[acottawa]

Originally Posted by lio45

Exactly. It's a "everything we know breaks down" interpretation of freedom of expression. That judge is completely out on left field. I wasn't kidding when saying that by those standards, the City of Sherbrooke violated my freedom of expression by eliminating my municipal ward against my will last year. (And as discussed with niwell earlier, yes, I could be the loony guy taking the City to higher courts to try to force it to reinstate my ward; in which case I'd likely become known locally as that anal annoying idiot with way too much free time... but it's something I _could_ do (I'd lose, but I can try, that's the beauty of our judicial system.))

Worse than that, if the new wards are too big for voters to exercise their freedom of expression then the identical federal and provincial ridings are probably unconstitutional. If 9 weeks is an insufficient amount of time for a candidate to excercise their freedom of expression then 5 week federal and provincial campaigns are probably unconstitutional. And if anything that inconveniences candidates planning violates their freedom of expression then a whole bunch of things violate freedom of expression, including by-elections and non-confidence motions.

[Doady]

Originally Posted by Acajack

Why did Davis and the other architects of 1982 speaking out right now include the NWC if they did not want anyone to use it?

Yes, Bill Davis should stop saying that no one should ever use the NWC under any circumstance. It just makes him look like an idiot.

[Acajack]

Originally Posted by rousseau

This seems crystal clear to me. Ford is going to extraordinary lengths to interfere with a local election..

Ford is not in any way interfering with the outcome of the election (i.e. favouring one side to win) and he is certainly not preventing it from taking place.

Whether or not the election will take place under less optimal conditions is a matter of debate. Or at least, who is to blame for that - both candidates and the City could have adjusted things to fit the new reality in mid-July, as it was clear back then that a majority provincial government with legitimate authority over municipal matters intended to make a change to the number of councillors.

One might say that they're at least partly responsible for the mess by digging in their heels and wasting precious time that could have been used to run a smoother election for the smaller council that Toronto will end up with anyway.

[niwell]

Originally Posted by Acajack

.

One might say that they're at least partly responsible for the mess by digging in their heels and wasting precious time that could have been used to run a smoother election for the smaller council that Toronto will end up with anyway.

Technically sure, but if everyone followed that logic than the world would certainly be a much worse place than it is now, that’s for sure.

[kwoldtimer]

Originally Posted by Acajack

Why did Davis and the other architects of 1982 speaking out right now include the NWC if they did not want anyone to use it?

Iirc, it was the only way to get the deal.

[Doug]

Originally Posted by Doady

Yes, Bill Davis should stop saying that no one should ever use the NWC under any circumstance. It just makes him look like an idiot.

The Premiers of 1981-1982 likely never foresaw a future of hyper activism where the definition of rights would become so expansive that trivial government moves would trigger Charter challenges.

[kwoldtimer]

Originally Posted by once

[B]Any interference preventing politicians from being elected is now a constitutional violation.
..........

No, it is not.

[Doug]

Good time to be a lawyer in Ontario. Wait until Ford tries to lay off teachers and violates their right expression.