By Jennifer Pagliaro
There’s a line in a decree sent by Henry I to London that is of particular importance to the status of cities. This was back in 12th century, in the time of medieval feudalism.
“None other shall be justice over the same men of London,” the short document is said to have read, various historians note.
Essentially — govern yourselves, people of London.
Back then it was a novel concept, one of the earliest examples of what is known as a “charter city” — higher level governments providing municipalities with specific legal jurisdiction under a country’s constitution to govern their own affairs relatively free from interference from the state. The Henry I charter set out that London, among other rights, could choose its own sheriffs and that its citizens would not be subject to trial by battle.
For those in Toronto who have now become very familiar with the idea that Toronto is “a creature of the province,” the idea might — centuries later — still seem foreign.
But as Toronto continues to battle with the province over the control of its own destiny — fighting over changes to land use planning, funding for basic services and even the size of council — there is a brewing discussion taking place among citizens about how to get exactly that kind of respect.
Staff in Councillor Josh Matlow’s office have twice had to change the venue for a planned meeting Tuesday night under the banner of “Empower Toronto” — a panel discussion on “protecting local democracy with a city charter” — because of the overwhelming interest.
What started as capacity for just over 100 people in church basement near Yonge and St. Clair Ave. was quickly outmatched by the number of people who signed up to come. Now being held at the Timothy Eaton Church with a capacity of 1,200, the event hit its maximum registrations in under an hour with 450 more and climbing on a waiting list as of Thursday afternoon, Matlow’s office said.
Canada’s constitution was devised in the late 1800s when cities were an “afterthought,” Matlow said in an interview. The overwhelming response to the upcoming event is a signal of the desire for that to change, he said.
“Those 19th century rules no longer meet the needs of a 21st century city like Toronto,” Matlow said. “I believe that it’s time for Canada’s largest city, along with cities across the country, to be able to have the ability to provide the kind of local government that their residents expect from them.”
A charter for Toronto could be a flexible document, the Ward 12 (Toronto—St. Paul’s) councillor said.
Commonly, he noted, city charters cover three main areas: powers to collect revenue, land-use planning and elections — all things the city has come up against recently when it comes to its relationship with the provincial government.
Though the idea of a charter city is not new, the concept has not evolved in Canada beyond the current powers cities like Toronto currently have under the City of Toronto Act — provincial legislation that still often requires permission from the province to actually use certain powers.
As Toronto residents have recently experienced, there is no insulation in the City of Toronto Act from a provincial government who wants to modify, delete or simply ignore those rules or any others under provincial law by introducing new legislation at Queen’s Park
In the past year, under current Premier Doug Ford and his majority PC government, the city has seen: the size of council cut nearly in half, derailing an ongoing election; official plans for development overruled without consultation; public health funding threatened; the transit plan rewritten; and steps being taken for a subway system takeover.
But the big-footing did not begin with the election of Ford, Matlow noted. Impositions by provincial governments past include the cancellation of an Eglinton subway, forced amalgamation into a megacity, the downloading of costs for social housing and the right to toll the city’s own highways being denied.
Though cities like Calgary have recently seen city charters signed, those documents more closely resemble the City of Toronto Act then the charters for U.S. cities, which often come with amendments to the constitution affording those cities certain delegated authority, said Professor Harry Kitchen, an expert in municipal governance and taxation at Trent University.
Brooks Rainwater, director of the center for city solutions at the National League of Cities — a major advocacy group for U.S. cities — said about 10 states have specific allowances for charter cities or what is often referred to as “home rule.”
“We’ve seen a great deal of challenge in recent years with what has been termed ‘pre-emption,’ where we have the state governments pre-empting local authority on a whole host of issues, and I think similarly to what you see in Canada, it’s risen as cities have gained more economic power but not always the political power that goes along with that,” Rainwater said, calling it one of the “fundamental challenges of our time.”
“I do think that cities having home rule provisions provide them with the authority to act in the best interest of the people that live in those communities . . . we see time and time again that local officials have garnered more trust than state and national political leaders, and they interact with the people in those communities every day and so they really know what it is that individuals residents are looking for in their political leaders and what types of policies they’d like to see enacted.
So, is it feasible for Toronto to become a charter city similar to places like New York City and Chicago?
Constitutional law experts say it’s legally possible, but politically tricky.
The legal problem for cities stems from Section 92 of the constitution, which gives provinces the exclusive power over municipalities. This is where that whole “creature of the province” idea comes from.
Even the Charter of Rights and Freedoms omits any mention of cities from basic enshrined rights, like the section 3 right to vote, which specifically says: “Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.” There is no mention at all of municipalities or city councils.
The method for passing constitutional amendments — which would allow for greater authority to be given to cities — was changed “dramatically” in 1982 after “very complicated” negotiations between the premiers and prime minister of the day, a process that involved much “horse-trading” between provinces and the federal government, said University of Toronto professor Lorraine Weinrib, who specializes in constitutional law.
The formula allows for the federal government and one provincial government to agree to an amendment specific to that province, without involving the other provincial governments, Weinrib said.
The new formula turned out to be “very complex,” Weinrib said, and in practice “ it’s been very hard to use” but she noted it could be possible for the idea of greater autonomy for Toronto to become a federal election issue and garner support with some parties.
Osgoode Hall professor Bruce Ryder said a bilateral amendment (between the federal government and Ontario’s) would be less complicated then amendments that involve the whole nation because Quebec, whose government remains unsatisfied with the 1982 changes, has long put up a political “roadblock” to further amendments.
“At the constitutional level there’s nothing to to prevent the Ontario legislature and the federal Parliament to agree on an amendment to the constitution that applies only in Ontario,” Ryder said, a procedure that’s been used several times since 1982.
The challenge, he said, is convincing a future Ontario government that providing constitutional protections is overdue in Canada and to give up its own legislative power over the city.
Once an amendment was made, any further changes, including repealing those changes, would be subject to the same type of mutual approval, Ryder said — freeing Toronto of being treated by like a “provincial plaything.”
Former Toronto mayor John Sewell, who is a panelist at the upcoming event and who, with a group of other citizens, has been pushing for a charter for Toronto, said the city is at a breaking point in its relationship with the province.
“I think what has happened here is this has crystallized the whole thing about the need for a city to have some protection from a provincial government,” Sewell said. In his previous experience fighting the province’s move to create a megacity residents were up in arms, but the difference now is the “arbitrariness” of the Ford government’s actions, he said.
“I want to spark people’s interest in saying, ‘so what would a charter actually say and how would it be done,’” he said. “This is the beginning of that conversation.”
Matlow is hopeful constitutional amendments may one day be possible, but knows it’s a long game.
“You just need the province and the federal government to agree to do it and if we can have the right stars aligned then we can move forward, but the way to manifest what you want is to prepare for the destination that you want to arrive at,” he said.
“The work needs to begin now.”