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BONNER: Enough with the exploding heads, time to unpack the problems with the Ford ruling

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BY ALLAN BONNER

Ontario Premier Doug Ford caused heads to explode by proposing to reduce the size of Toronto City Council via Bill 5. They exploded again when the Premier stated he’d use the “notwithstanding” clause in our constitution to override the Ontario Superior Court of Justice ruling that some of Bill 5’s provisions were unconstitutional.  Now the City wants to challenge that in court.

We need a thoughtful analysis of this issue and we pretty much get one from the Justice who ruled on this bill.  The 18-page ruling is a guide to judicial versus provincial versus municipal roles.  He notes the question for the court is not whether Bill 5 is unfair, but whether it is unconstitutional.  As for separation of powers, he cites the need for “Judicial deference and restraint” with regard to elected legislatures. This is a respectful version of Premier Ford’s saying “I was elected,” and the Justice wasn’t. They have different roles and legal scholar Peter Hoag has noted that there is now a “dialogue” between what has been our historical and ultimate law-making body-legislatures, and the courts.  The Justice and the Premier have provided their sides of the dialogue.

The court ruling agrees with the Province on many matters. Ontario has the authority, even to “pass a law that is wrong-headed, unfair or even ‘draconian.’” The remedy for bad laws is at “the ballot box, not judicial review.” There is no obligation for the province to consult with anyone.  Our constitution does not guarantee us a municipal level of government, a vote at that level, let alone 47 counsellors.

The Justice adds that his ruling does not “constitutionalize a third level of government” not mentioned in our constitution — giving new status to municipalities. They only have the status that the province gave them though legislation, which can be rescinded or amended.

At the core of this ruling are two points. First, Bill 5 “breached the municipal candidate’s freedom of expression” and it “breached the municipal voter’s right to cast a vote that can result in effective representation.” One person, one vote and similar sized constituencies or Wards are just one issue, but there are others. Hence the judge’s use of the phrase “effective representation” not “equal” voting power or result.

Curtailing freedom of expression or effective representation sound bad and we don’t want either abridged in our democracy. But let’s parse the legal matters. Were municipal candidates prevented from speaking in any way, or speaking their minds on a particular issue? No. In fact, the Justice was referencing the candidates’ inability to interact within a known Ward boundary and with a definitive set of voters. That’s true. But candidates could express themselves via the campaign activities (web, pamphlets, speeches, door-to-door canvass) that the Justice cites were underway. It is correct that candidates were not entirely sure to whom they should speak and were not assured of a response.  But neither an audience nor a response are guaranteed by our Charter. We can talk, but no one can compel us to listen. We free citizens can pass by the speaker on the soapbox, turn off the radio and TV, kick the candidate off the front porch, throw away political pamphlets, and use newspapers to wrap up fish and chips. That’s freedom too.

The Justice’s second point is that a vote from a larger block of electors would be less “effective representation.” Perhaps, but the case is weak. The Justice rightly cites a political (not necessarily a legal) matter. This is that councillors must deal with “myriad of constituents’ grievances and concerns … from public transit, high-rise developments and policing to neighbourhood zoning issues, building permits and speed bumps.”  Larger wards would prevent councillors from responding “in a timely fashion” to these issues.

This may be true, but irrelevant in practical terms. I have some experience in this matter as Executive Assistant to Mayor Mel Lastman of North York — at the time (mid 1980s) the world’s longest-serving big city Mayor. His success was a result of very hard work on behalf of constituents. I saw first-hand the “thousands of individual complaints” that the Justice cites. The Mayor invited many of these via a weekly TV talk show reaching about 100,000 viewers and letters offering meetings to many thousands. Many citizen inquiries had to do with another level of government — Provincial, Metro, Federal. Many others were simply passed to staff or a committee of council. Those “thousands of individual complaints” boiled down to a few dozen that were in the Mayor’s preview. One of our most famous and successful politicians handled all in a timely way and was not overwhelmed. The solution to this notion of effective government is making staff more responsive and an appropriate division of labour. Turning more elected officials into glorified junior social workers and road crew gangs with no expertise in either field is not a democratic solution.

The reason that constituents call the wrong person in most cases and staff pass callers around is well documented. A Royal Commission on Metro Toronto in 1977 reported that out of 131 services reviewed, only 30 were exclusive to the municipal level. Thirty-eight were under special purpose bodies (such as the police) responsible to the province. Thirty-three were administered by the municipality but under the supervision of the province. Matters assigned exclusively to the municipality were “relatively unimportant: removing ice and snow… regulating heat in residential premises; dog licensing and controlling nuisances.” City councillors do not have a constitutional right to involve themselves in matters irrelevant to their mandate.

The City of Toronto Act gave more powers to this particular city, but I can do without the empathy for city councillors who deal with wrong number calls at great length.

The other political matter which the Justice uses to bolster his ruling is that Bill 5 was passed in the middle of an election campaign. Having worked on many campaigns, I’d suspect not a great deal was underway in the summer. Moreover, in some jurisdictions, elections last two weeks — “a reasonable opportunity to present” candidates’ positions, as the Justice says was denied in this case.

The ruling adds two caveats to the issue of timeliness. First, had the law been enacted six months before election day, it would not have interfered with any candidate’s freedom of expression. Second, perhaps restructuring of City Council should occur after the election.

Both are unworkable politically and are undemocratic. Our parliamentary system allows for elections at any time the governing party loses confidence of the legislative chamber. When the election is held can vary, but that variance should not limit the ability of the new government to govern.

Stipulating that a duly elected body cannot take legislative action for a certain period of time hobbles that body in an undemocratic way. This is especially true if the suggestion is to hobble a province in its legislative responsibilities for a body it created — a city. We have no time constraints on Charter rights. We don’t have to give notice to anyone in order to speak, assemble, worship, vote, and soon. The province should not have any greater constraints.

Conversely, consider the democratic implications of allowing hundreds of people to campaign for 47 seats, knowing there will be legislation outlawing 22 of those seats following the election. Will those 22 serve only a few months or a full term, after which their Wards will be eliminated? Will they serve constituents fully and with vigour?  This would be a form of nullifying the electoral process, perhaps worse than doing it now.

The concept of proportionality deals with the balance between limiting a charter right and the objective of doing so. The objective of saving taxpayers’ money and streamlining city government is justifiable. Moreover, a future judgement may take into account proposed ways of reducing the impact of this change — better use of staff time, for example.

Finally, the Justice notes that local government is “closest to its residents” and “most affects them on a daily basis.”  This seems unimportant until you consider that the Justice is obliquely referencing a Supreme Court ruling on “subsidiarity.” This is the notion that “law-making and implementation are often best achieved at a level of government that is not only effective, but also closest to the citizens affected and thus most responsive to their needs …” The Supreme Court is not bound by this decision and may change its mind. In fact, there’s equivocation in the ruling — “often” means not always, “closest” is debatable when we consider how close voters feel to provincial or federal politicians and whether they can name a few city councillors, and “responsive” can be tested by dialing 311, or any number of municipal officials.

This Premier did not contribute to our constitution or the negotiations in the early 1980s and the compromise of the notwithstanding clause. It’s the law of the land, used by Quebec, and now used in Ontario for a public purpose. Voters are free to pass judgement on this at the ballot box.

— Allan Bonner is an urban planner, political scientist, and graduate of Osgoode Hall Law School.  He was staff Executive Assistant to Mayor Mel Lastman in the 1980s and subsequently a consultant to a dozen Canadian premiers and 100 cabinet ministers.  He has worked on five continents and lives in Toronto. 

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Ottawa-Gatineau tornado damage in video and photos

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Aftermath of a storm

Downed trees and power lines have left thousands of residents without electricity on both sides of the Ottawa River following a tornado, high winds and rain that swept through Ottawa and Gatineau, Que., on Friday. Some in the hardest-hit areas are dealing with damaged or destroyed homes, and several people were taken to hospital.

Video footage from Friday and Saturday shows damage to homes and structures after tornado rips through area 1:17

Hydro poles in the Greenbank/Hunt Club area of Ottawa were damaged by high winds Friday. Hydro Ottawa President Bryce Conrad said damage to electric infrastructure could take days to restore. (Leah Hansen/CBC)

Residents of the Mont Bleu neighbourhood of Gatineau, Que. began the process of cleaning up on Saturday, a day after a tornado and high winds swept through the Ottawa-Gatineau region. (Michel Aspirot/Radio-Canada)

A tree smashed through the roof of a townhouse in the Craig Henry neighbourhood of Ottawa during the storms that hit the National Capital Region. (Leah Hansen/CBC)

Flyover reveals devastation in Ottawa-Gatineau region

A helicopter view at midday Saturday shows the path of destruction from Friday's tornado and related storms.

Twister ripped through Ottawa area and neighbouring Quebec, flattening dozens of homes, trees and electrical towers. 0:33

Heavy damage in Dunrobin, Ont.

The tornado's path went through the small community of Dunrobin in Ottawa's west end, leaving 60 homes destroyed or damaged. Five people from the area were taken to hospital with serious injuries, officials said.

This home was completely flattened by the Ottawa tornado in Dunrobin. (Jennifer Chevalier/CBC )

The roof of this strip mall in Dunrobin was partially torn off. (Jennifer Chevalier/CBC)

A young couple surveys the damage to their home following a tornado in Dunrobin, Ont. on Friday. (Sean Kilpatrick/Canadian Press)

People collect personal effects from damaged homes following a tornado the small community west of Ottawa. (Sean Kilpatrick/Canadian Press)

Some of the aftermath of Friday's tornado in Dunrobin. (Nicole Novotny)

Golf ball-sized hail

During the twister, large hail hit the community.

A picture of some of the hail that came down in Dunrobin. (@Wellsie/Twitter)

Car caught in fallen tree

Despite the mounting damage, people in Ottawa found humour. Heather Badenoch tweeted this photo with the caption "Car in a tree. No, the other car."

Seeing trees on cars isn't unusual in the wake of the Ottawa tornado. (Heather Badenoch)

Debris blows through Dunrobin

With several buildings in Dunrobin destroyed, debris spread through the area. 

A car lies destroyed in the aftermath of Ottawa's tornado. (Nicole Nivotny)

Streets littered with fallen wires

Hydro poles hung in twisted power lines over Greenbank Road in Ottawa's west end. 

Greenbank Road in Ottawa is among the areas affected by the tornado. (@Marsbarpants/Twitter)

Roof tears off building

In Gatineau, Que. a roof was ripped from a building on Boulevard de la Cité-des-Jeunes.

A car rests under debris on Boulevard de la Cité-des-Jeunes in Gatineau. (Toni Choueiri/CBC) 

Stark images of destruction linger

Objects thrown by high winds sit in stark contrast with a darkening sky.

Some of the aftermath of the tornado in Dunrobin. (Matt Day)

Sun sets on damaged homes

Some houses seemed almost untouched, surrounded by fallen trees.

The sky's beauty juxtaposed with the destruction in this area of Dunrobin. (Reno Patry/CBC)

Nepean storm damage

Some of the storm damage near Riverbrook Road in Nepean. 

Some of the storm damage in the Arlington area. (David Caughey)

A community united

Neighbours worked together to clear a street of a fallen tree.

Neighbours worked together to clear a street of a fallen tree after a severe storm ripped through Ottawa. (Heather Badenoch)

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Canada's capital region reeling in aftermath of intense tornado

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OTTAWA—Parts of Canada’s national capital were still reeling Saturday after a powerful tornado carved paths of destruction through residential neighbourhoods — snapping huge trees, tossing cars and obliterating homes along its way.

The tornado inflicted heavy damage late Friday as it churned across pockets of Ottawa’s west and south ends, as well as densely populated sections of the neighbouring Quebec city of Gatineau.

A dormer, torn from a home's roof in Friday’s tornado in Dunrobin, Ont., lies in on the ground on Saturday, Sept. 22, 2018. The storm ripped roofs off of homes, overturned cars and felled power lines in the Ottawa community of Dunrobin and in Gatineau, Que.  (Justin Tang / THE CANADIAN PRESS)

The storm’s bite continued to be felt across a wide swath of the region many hours later, with more than 150,000 customers still without power Saturday afternoon. Hydro Ottawa CEO Bryce Conrad compared the magnitude of the damage to the power grid to the debilitating ice storm of 1998.

The human toll was also significant. Authorities said dozens of people suffered injuries, however there were no reports of fatalities or of missing people.

The Ottawa Hospital tweeted that two people were in critical condition, one was in serious condition and two others were stable. Officials established shelters for those who couldn’t return home and they said crisis counselling would be available.

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On the north side of the Ottawa River, Gatineau Mayor Maxime Pedneaud-Jobin said more than 700 of his citizens were impacted by the storm and about 100 people took refuge in a shelter Friday night at a local college. More than 215 buildings suffered damage or were destroyed in his city — affecting a total of 1,686 housing units, he added.

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More details emerge about deadly Manitoba tornado’s destructive path

In areas lashed by the tornado, scenes of the havoc were everywhere. The winds tore the roofs from numerous large buildings, bounced large sections of metal bleachers across soccer fields, knocked over hydro poles and cracked thick trees like twigs.

“It looked like it was something from a movie scene or a war scene,” Ottawa Mayor Jim Watson told reporters Saturday recalling what he saw in the area of Dunrobin, where some 60 buildings were wiped out or partially destroyed.

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“Literally, it looks like some bomb was dropped from the air.”

Much of Dunrobin, a semirural community about 35 kilometres west of downtown Ottawa, remained cordoned off by police Saturday afternoon.

It was eerily quiet inside the police perimeter of one of Dunrobin’s most-damaged neighbourhoods — and only a few trees were still standing. Personal items were strewn everywhere — a baby blanket, a life-jacket, mattresses, lawn mowers, a fridge, a kitchen sink lying on the grass and even a love seat wrapped around a telephone pole.

A car, windows shattered, lay on its side in front of a house. Fluffy, pink insulation — sucked out of ravaged homes — covered the neighbourhood.

Looking at one house, the blue sky could be seen through an open door. Its roof had vanished.

Some houses had nothing left at all and lay flat on the ground, covering their vehicles.

Christine Earle, right, leans on the shoulder of her friend Gillian Szollos as they survey the damage caused by the tornado.
Christine Earle, right, leans on the shoulder of her friend Gillian Szollos as they survey the damage caused by the tornado.  (Justin Tang/The Canadian Press)

Officials warned people not to re-enter their homes until they had been deemed safe as firefighters went door-to-door to determine whether structures were still sound. In Dunrobin, authorities said many buildings that had emerged from the tornado partially intact would likely have to be torn down.

Conrad informed people in the Ottawa area to brace for a multi-day power outage following what he described as a “cascading failure” of hydro resources.

“Last night’s storm was devastating to our electrical infrastructure, arguably as bad if not worse than the ice storm in 1998,” Conrad told reporters.

He said there were 200 separate outages across the Hydro Ottawa network and 147,000 customers without power. Hydro Ottawa only serves some of the people left without power because of the tornado.

To put it into perspective, Conrad said the electrical load that comes into Ottawa on any given day this time of year is about 1,000 megawatts. The storm took away about 400 megawatts from the supply.

“That’s what we’re working with — that’s why we are dark,” he said, listing off communities around the western, southern and some central parts of Ottawa.

A dog named Charlie was rescued after being found under a pile of debris after a tornado touched down in Dunrobin, Ont., on Friday.
A dog named Charlie was rescued after being found under a pile of debris after a tornado touched down in Dunrobin, Ont., on Friday.  (Sean Kilpatrick/The Canadian Press)

Environment Canada confirmed Saturday that indeed a tornado struck the capital region. Meterologist Simon Legault said there was evidence of powerful winds between 180 and 220 kilometres per hour, which would correspond with an EF2 category tornado.

Ontario Premier Doug Ford issued a statement Saturday on the tornado.

“On behalf of the government of Ontario, I want to tell the people of Ottawa that my thoughts are with them as they work to recover from the tornado and storm that impacted the Ottawa area yesterday; especially to the people of Dunrobin who saw immense damage to their homes and community,” said Ford, who also thanked first responders and hydro crews.

An overhead view of damage caused in Dunrobin, Ont., by Friday's tornado.
An overhead view of damage caused in Dunrobin, Ont., by Friday's tornado.  (Sean Kilpatrick/The Canadian Press)

In Gatineau, leaders of major political parties took a pause from the province’s ongoing election campaign to visit areas walloped by the tornado.

Setting aside their political differences, Liberal Leader Philippe Couillard and Parti Quebecois Leader Jean-Francois Lisee visited one of the most devastated parts of Gatineau together. Coalition Avenir Quebec Leader François Legault and Manon Masse, a co-spokesperson for Québec Solidaire, were scheduled to arrive in the area later Saturday.

“It’s so surprising and terrible to see the disaster the way it struck the homes,” said Couillard, as he toured Pontiac, Que.

Couillard added he was moved when he heard a story about a man in the community who had built his house with his own hands.

“And it’s completely vanished, almost completely vanished.”

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Man dead, 2 Halton officers injured in shooting in Burlington, SIU investigating

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A man is dead and two Halton Region police officers were injured in a shooting in Burlington early Saturday, according to police and Ontario's Special Investigations Unit.

The SIU says it is investigating the shooting, which occurred inside an Esso gas station near Harvester Road and Appleby Line.

Monica Hudon, spokesperson for the SIU, told reporters that the man, 32, died after an exchange of gunfire between himself, four Halton Regional Police officers and one Ontario Provincial Police officer.

Two Halton Regional Police Service officers stand near an Esso gas bar in Burlington after Saturday's shooting. (Andrew Collins/CBC)

Two officers were wounded in the shooting and taken to hospital. 

One of the injured officers did not open fire. The man died at the scene.

Nishan Duraiappah, deputy chief of district operations with Halton Regional Police, said the wounded officers were at a critical care centre in Hamilton in stable, non-life-threatening condition. He wasn't able to comment further on the extent of the officers' injuries due to the SIU investigation.

"They're in good spirits and have a lot of appreciation for the support and communication from the public," he told the media. 

A number of Halton police vehicles attended to the incident. (Andrew Collins/CBC)

Hudon said OPP officers were trying to find a man who had been involved in a collision before the shooting early Saturday. At 5:30 a.m. ET, police received a call about a suspicious man in the gas station bathroom.

She said she didn't have any details about the collision or the vehicle involved, and the OPP has not released any information.

Both the OPP and Halton police responded to the call.

"What I can tell you is the man exited the bathroom, and that is when there was the exchange of gunfire shortly after," Hudon said at the scene.

Hudon said the man's name and hometown will not be released until next of kin are notified.

The man was alone at the time of the shooting.

No risk to public safety anymore, police say

For its part, Halton police said in a news release it wanted to reassure the public that there is no longer a public safety risk.

Earlier on Saturday, Const. Ryan Anderson, a spokesperson for Halton police, confirmed that Halton officers were involved in the shooting.

Police presence was heavy outside the gas station. (Andrew Collins/CBC)

"The SIU has been notified. Beyond that, I cannot say anything else."

There has been a heavy police presence at the station since early Saturday.

The SIU has assigned five investigators and two forensic investigators to the shooting. Investigators are looking for video evidence, she said.

Police tape was put up around the gas station after the shooting. (Andrew Collins/CBC)

According to Hudon, the SIU will have to determine what exactly transpired, how many shots were fired and the sequence of events. It will review security camera video from the gas station, she added.

"It's all part of our investigation," she said.

The SIU is an arm​'s-length agency that probes any incidents in which a person is injured or dies during an interaction with police.

The SIU is urging anyone who may have information about the shooting to contact the lead investigator at 1-800-787-8529. People who may have any video evidence are urged to upload it through the SIU website.

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