Dear NDP: Get Out Of The Way

Update 2018-08-14: The NDP – knowing full well they will not be able to stop Bill 5 from becoming law and delaying the courts the ability to rule on the law while prolonging uncertainty & anxiety – is now politically profiting on it’s continued lack of passage. They are holding townhall meetings where they are gathering data on participants that they would use in a 25 ward system and, possibly, paying for those meetings using funds raised under the existing 47 ward races which would be inaccessible to them in the new wards.

Original Post: The NDP is making a big show of trying to delay the legislation to reduce the number of Toronto City Councillors from 47 to 25. If they are serious about wanting to protect the democratic rights of Toronto residents then they need sit down and let the bill pass. They need to acknowledge the correct arena in which to fight this battle, delaying only furthers uncertainty and anxiety, and finally it gives the Ford Government more time to make changes that strengthen its case. If they want to do what’s right they need to sit down and let it pass quickly.

The legislative arena is not the best place to fight this battle. Since the PCPO is a majority government, even if all non-government members vote against Bill 5 it will still pass. Somehow, implausible, the NDP would need to peel away the support of 14 government members – in a highly whipped and controlled party – to be able to defeat this legislation. That isn’t going to happen. The bills passage is all but guaranteed.

The only, faint, glimmer of hope that exists for defeating Bill 5 prior to passage is if someone files suit to ask a reference question of the courts on the matter, the courts confirm the premise of the bill being unconstitutional, and the government shelves the bill of their own accord. Given the timelines at stake this is highly unlikely to occur.

However, once the bill is passed there exists many parties that can intervene and seek immediate injuctive relief. The City of Toronto can sue, the specific grounds on which is being actively studied by the City’s legal team now. A candidate can sue on the broad legal grounds that as a participant of a legally constituted election having the rules change partway through is not fair. One candidate is reported to be already seeking standing to sue as soon as the law is passed. Finally a citizen can sue on the broad legal grounds that they have certain charter rights to equal and fair representation and that larger wards violates those right. The consistent factor in all of these legal strategies is that they require the bill to become law first.

Delaying only breeds uncertainty, particularly for campaigns on unaffiliated, independent candidates. Candidates that are all but campaigning under the NDP banner have virtually little to fear with the shift to larger wards: they have access to NDP lists, have access to NDP volunteers, can tap the NDP fundraising networks, and can coordinate purchases of campaign materials under NDP bulk purchasing contracts. They need merely decide among themselves who will run in which wards to ensure there are no splits or conflicts.

Candidates unaffiliated with a party don’t have such resources and must suddenly face the prospect of running campaigns in wards that have two to three times the geographic area and three to five times the population.

Council races, which already skew heavily in favour of incumbents, become a near impossibility for independent candidates, barring the very rich and highly connected.

Finally, delaying passage of the legislation – no less forcing it into a committee process designed to look for flaws and correct them through amendments – only increases the possibility that the PCPO will find ways to strengthen their case when the law is challenged in the courts. Passage of weak, poorly thought out law is better for battling it in the courts than delaying and strengthening that law.

So NDP, get out of the way. Pick your battles and think about your tactics. Everyone knows you love to stand in the legislature and rail against the government, and in most cases it’s quite entertaining. But in this instance shut up and let the lawyers do what they need to do.