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LOCAL SELF GOVERNMENT - BULLETIN No. 9, October 2000

The purpose of this bulletin is to focus debate on the need to increase
local self government in Canada and to help local communities achieve more
autonomy. The local self government web site is http://www.localselfgovt.org
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In this issue:
1. The Supreme Court of Canada disempowers local institutions
2. At last: someone’s created a good municipal voters’ list
3. Subscribe to the bulletin.
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1. The Supreme Court of Canada disempowers local institutions

The written decision of the Supreme Court of Canada on the Alberta School Boards case – the Public School Board Association of Alberta had argued that municipal organizations possess a reasonable degree of autonomy from provincial governments – was released on October 6. The Court had previously indicated it would reject the PSBAA’s argument, but the decision handed down puts an end to any hope of judicial interpretation which provides respect for municipalities and school boards. The following are excerpts of Mr. Justice Major’s decision:

1 The appellants’ submission that ss. 92(8) and 93 of the Constitution Act, 1867 and s. 17 of the Alberta Act provide a legal basis for reasonable autonomy fails. I agree with the PSBAA that school boards are a form of municipal institution. However, municipal institutions take various forms and are not identical. Although their characteristics and historical backgrounds differ, all municipal institutions are delegates of provincial jurisdiction under s. 92(8) of the Constitution Act, 1867.
2 Municipal institutions do not have an independent constitutional status. School boards are somewhat unique, however, as they represent the vehicles through which the constitutionally entrenched denominational rights of individuals are realized. Yet that is not to say that the institutions themselves are entrenched or must remain mired in their historical form to fulfill these constitutional guarantees.
3 The proposition that educational institutions are malleable and subject to legislative reform is sound. The introductory language of s. 93 has been found to confer upon the provinces a plenary jurisdiction over education. [Various cases are cited on this point, including a 1996 case where the judge stated], `... public school rights are not themselves constitutionally entrenched. It is the province’s plenary power to legislate with regard to public schools, which are open to all members of society, without distinction, that is constitutionally entrenched....’
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5. A claim to an institutional sphere of reasonable autonomy is inconsistent with, and would impair, this plenary power. Section 17 of the Alberta Act does not alter this position. The Province of Alberta may alter educational institutions within its borders as it sees fit, subject only to those rights afforded through the combined effect of s. 93 and s. 17. Whether the impugned provisions infringe these rights in respect of public schools in Alberta is the subject matter of the following two constitutional questions in this appeal. `While constitutional convention has been argued, none has been identified which would demonstrate that school boards have a sphere of reasonable autonomy.’
6. The appellant PSBAA referred to historical material dating as far back as the Magna Carta (1215) to establish a convention of local institution independence. Of more recent date, the PSBAA alleged that prior to the introduction of the impugned legislation in 1994, school governance in Alberta displayed de facto reasonable autonomy.
7. The submission that in 1905 educational institutions in Alberta operated under a precedent of local autonomy is unconvincing. In fact, the historical evidence submitted by the respondent Province of Alberta indicates a significant degree of centralized control. Such control was exhibited, for example, through the imposition of mill rate caps on local boards under The School Assessment Ordinance, O.N.W.T. 1901, c. 30, and through the administrative oversight of territorial commissioners, superintendents and inspectors.
8. Even if there had been clearer precedents in favour of local school board autonomy and powers of taxation prior to Confederation, the fact that the framers of s. 93 and of s. 17 respectively conferred on provinces a plenary jurisdiction over education, suggests that the framers did not feel bound by convention to restrict the provinces to the educational structures and models of the past. On the contrary, both of these reasons reflect a social compromise viewed as necessary to achieving Confederation, rather than a will to entrench existing institutional structures. The continuing legislative reform of educational institutions since that time further denies the existence of any belief in the binding nature of particular pre-Confederation models of education governance. Therefore, it is my conclusion that the appellants have failed to satisfy the requirements for establishing a binding constitutional convention of reasonable autonomy.
9. …The PSBAA’s request for a declaration that a binding convention of autonomy exists fails.

The full decision may be found at www.lexum.umontreal.ca/csc-scc/en/rec/index.html

2. At last: someone’s created a good municipal voters’ list

This fall is election time for many municipalities across Canada, including those in Ontario and Nova Scotia.

One of the significant problems for municipal elections, at least in Ontario, has been the shoddiness of the voters’ list, particularly for residents of multi-unit apartment buildings. Voters’ lists have usually been compiled by provincial officials from the assessment rolls and the list of tenants shown is notoriously out of date and inaccurate.

In recent elections the inaccuracy rate for multi-unit apartment buildings in downtown Toronto, for instance, has been about 50 per cent - half the names shown as residents are wrong (they have moved out) and half the residents in the building are not included in the list.

But not this time around in Ontario. John Hollins, Toronto’s chief election official, has reviewed the current list and says, “It is the best voters’ list I have seen.”

The reason for the good list is simple. It’s no longer prepared by the provincial government. Instead it’s prepared by an organization controlled by municipal governments - another example of the success that comes with letting municipalities control their own affairs.

The good results were hardly intended. In 1996, as another device to remove costs from its books and stick them onto municipalities, the provincial government downloaded to municipalities responsibility for preparing assessment roles and voters lists. The legislation established the Ontario Property Assessment Corporation, controlled by a board of directors consisting primarily of municipal councillors and municipal staff, with expenses shared by all Ontario municipalities.

OPAC hired as its executive director the former Chief Administrative Officer of Metro Toronto, Bob Richards, and he obviously has strong loyalties to local government.

Richards and his staff have been careful to get a list of current tenants for multi-unit buildings. OPAC requires landlords of buildings with more than 6 units to provide, each July, an up-to-date list of tenants which is the basis of the voters list. The compliance rate is very high.

This list is updated monthly, with information from Canada Post about address changes and other places (42,000 changes were forwarded to Toronto in late September), so the voters list is as accurate a reflection of who currently lives where as possible.

Richards points out that the cost of the exercise to OPAC is about 30 per cent less than what the botched exercise cost the province. `We have more information than them, so we’re trying to get Elections Ontario to use our information,’ he says. One suspects that if Jean Chretien calls a federal election for late November, Elections Canada will probably continue to use the inaccurate `permanent’ list that it shares with Elections Ontario, rather than get serious about things and adopt OPAC’s list and approach.

Richards is not about to toot OPACs horn until the municipal elections are over. `It will never be a perfect system,’ he says. `There will always be an ugly story somewhere.’ He notes for example that last week one smaller municipality in central Ontario reported that 400 voters had been assigned to the wrong side of town. Richards says that whenever you’re working with large chunks of data there are bound to be errors, although at least by releasing information to municipalities well in advance of voting day there’s a good chance of catching and rectifying the big problems. He also says that the new information released monthly to municipalities by OPAC is broken down by ward and poll so that city clerks can identify areas where there’s likely to be a lack of information, and put their resources there.

The OPAC model looks like a good one for all Canadian municipalities to consider using to obtain a good voters list.

3. Subscribe to this bulletin

The bulletin is sent to about 900 individuals involved directly and
indirectly in local government in Canada. We invite you to subscribe – there is no cost - by going to the 'Bulletin' tab of the web site http://www.localselfgovt.org and following the instructions. More information about the sponsors of the bulletin, members of the advisory committee, and our discussion space, can be found on our web site. We appreciate your comments, your feedback, and items of interest that you wish to share with us and others who visit the web site.