Thursday, March 2, 2006

The end of imagination

Wherever the real power in a government lies, there is the danger of oppression. In our Governments the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the Constituents.
— James Madison, Letter to Thomas Jefferson, October 17, 1788

The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other.
— James Madison, The Federalist No. 10
Superior Court Justice Dougald McDermid has rejected London's appeal of the Dec. 31 Ontario Municipal Board ruling ordering the city to replace its seven two-councillor wards with fourteen smaller single-councillor wards ostensibly representing "communities of interest" more or less — for example, farmers, students, the poor, suburbanites — according to a map drawn up by the ruling's author, Douglas Gates, as seen at right. City council has conceded the process after the loss of the appeal, ensuring that the fourteen ward system will be in place for this year's elections in November.

McDermid ruled that the OMB was within its authority, under the Ontario Municipal Act* to order the redistricting of wards, a decision that is perfectly legally correct. Under this act, the Ontario government has invested the OMB with the authority to accredit one unelected official with this power on the basis of the appeal of one elector in the case that council does not pass a bylaw in accordance with a petition requiring the signatures of only one per cent of the electorate or 500 electors, whichever is less. In the case of London, 997 signatures — less than one per cent of the electorate in a city of over 340,000 people — were obtained on a petition, and the petition's sponsors, Imagine London, found themselves with the statutory grounds to bypass the rest of the electorate and an astonishingly well-disposed ear bent at the OMB. Typically, huzzahs for democracy and accountability have been tossed around by the petitioners and their supporters on council in the wake of each ruling. "It's a good day for democracy in London," gushed Coun. Joni Baechler. One could be forgiven for thinking that we've never even had elections before. It's peculiar, because the original decision was based on a debate on governance rather than democracy — the word "democracy" does not appear once in the text of the OMB decision, and the word "democratic" appears only once, in quotes (p.15).

While McDermid's decision is legally correct and does not stray from the constraints of his jurisdiction over the matter, London is left with an appallingly flawed OMB order that the OMB has not yet seen fit to review, criticism of which I addressed in a previous post. It is sufficient to say here that Gates in his decision confused the structure of democratic government with the political objectives of the petitioners.

Imagine London is a group of disaffected social activists — they describe themselves as a "coalition of civic, neighborhood, labor, environmental, and student leaders" — who have mischievously recast a failure to achieve their own political objectives of environmentalism, heritage restrictions, pesticide bylaws and opposition to development under the current council as a failure of governance. In submission to Gate's hearings, the petitioners presented evidence of municipal disfunction according to their own criteria of social intervention and cast them as examples of "disconnection" between council and Londoners, a spurious association to which Gates all too readily conceded. Further, what neither the petitioners nor Gates established was that their examples of "disconnection" were related to the existing ward structure — it apparently was assumed by Gates to be the default explanation for the petitioners' complaints. They were abetted by a weak and defensive response by the city's witnesses.

Although not explicit in the OMB's hearings and decision, there is certainly a connection between the existing ward structure and Imagine London's objectives — there could not be otherwise especially given the lengths to which they have gone pursuing the decision. Advocates of activist intervention have long stridently voiced their continuing frustration with a council that can be characterized as fairly evenly divided between what can be called pro-development and anti-development, less and more interventionist, or laissez-faire and authoritarian propensities, according to your persuasion, resulting at times in some reluctance or a slow pace to adopt progressive policies that have been implemented in other cities. Imagine London's witnesses described the failure of council to implement what are euphemistically called "community initiatives" as a "democratic deadlock," to which Gates adhered in his decision. Unfortunately for advocates, democratic deadlocks are evidence that democracy is working properly — there is rarely a consensus on either side of the contentious issues they propose. That is small comfort to those with utter conviction on their side against the status quo.

The current two-councillors per ward system fairly divides representation between Londoners of more or less "pro-development and anti-development, less and more interventionist, or laissez-faire and authoritarian" persuasions. Moreover, considerations of the particular methods by which the sovereignty of popularity is exercised include restraints upon democratic government to prohibit it from infringing upon the rights of minorities, and the processes and structures by which democratic governments are arrived at and incorporated. The existing division of the city into pie-shaped wards cutting across "communities of interest" serves to aggregate interests in favour of self-serving interventionist policies with other self-serving interests, reducing the domain for common pursuit of particular interventions against one interest or another. "Communities of interest" left alone in their own sphere will not be moderated by the competition for common interest. Of course, this is precisely what Imagine London and its supporters are hoping for.

It is a shame that the lessons of the past will be institutionally wiped from memory. Both the elected-at-large Board of Control and the existing two-councillors per ward electoral structure were constructed as checks on the corruption and interventionist excesses of democratic government, generally in response to the Tammany Hall-type experiences of the late 19th and early 20th century. An affidavit by Andrew Sancton, filed in the Supreme Court of Canada in the 1999 unsuccessful challenge to the Toronto megacity legislation, Bill 103, Citizens’ Legal Challenge Inc., et al vs Attorney General of Ontario, is instructive:
In the United States, the municipal reform movement led not to municipal socialism as in Britain but rather to a search for new forms of municipal structures in which principles of good management would be able to prevail over the parochial concerns of ward politicians. The council-manager system, in which a small council elected at-large, while maintaining policy-making authority, hands all administrative responsibilities over to a professional city manager, is the best known and most long-lasting outcome of this approach.

… There are a number of points on which reformers from the two periods would not be in agreement. One such subject - municipal wards - is crucial to municipal political representation. Earlier reformers wanted no wards at all, or at least very large ones. New reformers favoured wards as mechanisms through which distinct communities within cities could be directly represented on municipal councils. In Ontario at least, they were fairly successful. Ever since the late 1960's, there has been a trend away from at-large elections in cities and in favour of elections based on wards. In Toronto, new reformers fought successfully to replace long, narrow wards encompassing various communities with block wards that more closely corresponded to the real social geography of the city.
Imagine London are of the new reformer camp. Of course, it is not inevitable that the new electoral system will result in the same kind of Millerista municipal government that is rapidly impoverishing Toronto — London voters will still have the power to elect responsible representatives even if the Ontario Municipal Act overrides their power to govern their own electoral structure. Time will tell — history suggests, however, that it may not be wise to be sanguine on the subject. It may be counterproductive of me to suggest this as a commentor on London politics, but it has been increasingly clear to me as I approach graduation that the prospects of an intelligent, educated and ambitious individual for a productive, prosperous and free life will not be well served by remaining in London.
*The Ontario Municipal Act, an obviously a flawed piece of legislation — see subsection (4).

Petition re: wards: 223. (1) Electors in a municipality may present a petition to the council asking the council to pass a by-law dividing or redividing the municipality into wards or dissolving the existing wards. 2001, c. 25, s. 223 (1).
Number of electors required: (2) The petition requires the signatures of 1 per cent of the electors in the municipality or 500 of the electors in the municipality, whichever is less, but, in any event, a minimum of 50 signatures of the electors in the municipality is required. 2001, c. 25, s. 223 (2).
Definition: (3) In this section, “elector” means a person whose name appears on the voters’ list, as amended up until the close of voting on voting day, for the last regular election preceding a petition being presented to council under subsection (1). 2001, c. 25, s. 223 (3).
Failure to act: (4) If the council does not pass a by-law in accordance with the petition within 30 days after receiving the petition, any of the electors who signed the petition may apply to the Ontario Municipal Board to have the municipality divided or redivided into wards or to have the existing wards dissolved. 2001, c. 25, s. 223 (4).
[Emphasis mine.]
Order: (5) The Board shall hear the application and may, despite any Act, make an order dividing or redividing the municipality into wards or dissolving the existing wards and subsection 222 (6) applies with necessary modifications in respect to the hearing. 2001, c. 25, s. 223 (5).


Honey Pot said...

Bravo! well done Imagination London!

MapMaster said...

Not quite the sentiment I was trying to express…

Lisa said...

$100, 000 in taxpayers money spent and nothing to show for it. Nobody is happy except George Rusty Brain, who recieved $435 per hour to debate the definition of a word.

Petition re: wards: 223. (1) Electors in a municipality may present a petition to the council asking the council to pass a by-law dividing or redividing the municipality into wards or dissolving the existing wards. 2001, c. 25, s. 223 (1).

The crap press reports:

A battle over London's election map that may cost taxpayers as much as $100,000 ended yesterday when a judge shot down a request by city council to appeal a new 14-ward map.

In a strongly worded decision, Superior Court Justice Dougald McDermid wrote the Ontario Municipal Board acted within its authority when it ordered the new map.

"There is no doubt that (the Municipal Act) gives the board the power to order what it did and in this case, I have no doubt about the correctness of its order. . . . My analysis . . . leads me to conclude unhesitatingly that the board did not exceed its jurisdiction."

[..] Rust D'Eye argued the Municipal Act gives the OMB power to change ward boundaries but not to create additional wards. That argument fell flat, wrote the judge, because the Act gives the OMB the power to redivide wards, an act that by its nature creates additional wards.

"I apply the plain and ordinary meaning of the word 'divide' which is 'to separate or be separated into parts; break up; split; mark out in parts,' " McDermid said. "To 'redivide' the municipality into wards must then mean that existing wards may be separated, broken up, split, or marked out into additional parts, which is what the board did by creating 14 wards."

The power of the oppressed minority rages on!

Honey Pot said...

No, not true. There are many that are happy about it Lisa. me for sure.

Anytime anyone can kick the cog out of the wheel, and make others think, it usually a good thing.

gm said...

This will replace an elected Board of Control with an unelected one.
How democratic>.

Anonymous said...

Actually, the Board of Control will remain exactly the same, 4 members elected at large. This despite the democratically exercised results of the 2003 referendum showing 55% in favour of removing the body. More people voted to abolish the Board of Control than did for 3 out of 4 Controllers. Ahh, Democracy you say.