Possible Provincial Enhancement of Municipalities
Professor Good’s solution is to add “manner and form” provisions in provincial statutes which impose requirements (such as a two-thirds vote or a referendum) before changes can be made in legislation affecting municipalities. To ensure that these provisions could not simply be repealed by a provincial government determined to proceed on its own, there would need to be “double retrenchment.” That is, a “manner and form” process would have to be followed to alter or repeal existing “manner and form” provisions.
To understand how this might work in practice, let’s assume that there had been a provision requiring two-thirds support for approval of provincial legislation changing the make-up of the Toronto city council when the current Conservative Government led by Doug Ford took power in late 2018. A two-thirds vote in the 124 seat Ontario Legislature is 83, and the Conservative majority consists of 76 seats. Without support from opposition parties, the Ford Government would not have the two-thirds vote needed to cut the Toronto council in half the way it did. The Government could repeal the provincial law requiring the two-thirds vote, but if double entrenchment existed, it would presumably need a two-thirds vote to repeal the requirement for ongoing two-thirds votes – which it does not have.
So doubly entrenched “manner and form” provisions such as a two-thirds vote requirement would appear to be a way of protecting a municipality from arbitrary provincial actions and giving it something akin to a constitutional status. But – and it is a big BUT – what provincial government would ever be moved to provide the municipal level with such a degree of protection? It is hard to image any governing party willingly giving up its authority over the municipal level.
Moreover, if such a scenario did ever arise, what about the rigidity that could result? Imagine a situation in which a municipality wanted to have certain changes made in its power, changes with which the province was agreeable, but which were subject to a doubly entrenched two-thirds vote provision. A governing party lacking two-thirds of the seats and without cooperation from opposition parties would presumably be unable to proceed with a change agreeable both to itself and the affected municipality – which hardly seems a sensible arrangement.]
As I have written elsewhere,[1] there have been a number of opportunities over the years to give some form of constitutional recognition to the municipal level and they have always been overlooked or ignored. Had the British Government provided for the recognition of a local level of government in the 1840 Act of Union merging Upper and Lower Canada – as recommended by Durham and Sydenham – such provisions might have been carried forward and included in the B.N.A. Act. Much more recently, and in spite of prolonged lobbying by bodies such as the Federation of Canadian Municipalities (FCM), recognition of the municipal level was left out of the 1982 Constitution Act, the 1987 Meech Lake Accord, and the 1992 Charlottetown Accord. Those in a position to do so have never shown an inclination to accord greater legal standing to the municipal level of government and there is no reason to expect that to change.
From Outstretched Hand to Raised Fist
Instead of looking for constitutional standing, municipalities need to take more initiative and make full use of any and all powers currently available to them. They need to overcome the “ingrained mindset of dependency” that Jane Jacobs attributed to them in a 2001 speech. They need to change the municipal culture from “comfortable subordination to assertive maturity.”[2] An encouraging example is the recent proposal by Toronto Mayor John Tory to raise an existing capital levy on property taxes by 1.5% annually to a total increase of 10.5% by 2025 to generate funds for transit and affordable housing. For far too long, Toronto politicians have insisted on holding tax increases at or below the rate of inflation while complaining about insufficient funds to meet their needs. It is high time the outstretched hand, begging for largesse from the provincial and federal levels, became a raised fist with the message “get out of our way, we have important work to do on behalf of our citizens.”
[1] Tindal et al, Local Government in Canada, Toronto, Nelson Canada, 9th edition, 2017.
[2] David Siegel and C. Richard Tindal, “Changing the Municipal Culture: From Comfortable Subordination to Assertive Maturity,” Municipal World, March and April 2006.