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Ontario’s mid-election changes to Toronto wards not unconstitutional: Supreme Court

We previously wrote about the Government of Ontario’s changes to Toronto municipal ward boundaries during the last municipal election in 2018 in Toronto’s On Again, Off Again Election To Proceed Notwithstanding Provincial Interference and Nothing Wrong With Cutting Number Of Toronto City Councillors During Election Campaign: Court Of Appeal.

The Supreme Court of Canada has finally weighed-in and decided that the Ontario government was within its rights to make those changes in Toronto (City) v. Ontario (Attorney General). The decision was a 5-4 split decision with Wagner C.J. and Brown J. writing for the majority. Justice Abella, for the minority, wrote what may be her last set of reasons as she has since retired from the Supreme Court.

The underlying decisions dealt with whether the changes to the boundaries infringed candidates’ and voters’ rights to freedom of expression under the Canadian Charter of Rights and Freedoms. The majority of the Supreme Court reframed the debate as being one of provincial legislative authority over municipalities.

In our view, the Province acted constitutionally. As to the s. 2 (b) claim, the City seeks access to a statutory platform which must be considered under the framework stated in Baier. The change to the ward structure did not prevent electoral participants from engaging in further political expression on election issues under the new ward structure in the 69 days between the Act coming into force and the election day. There was no substantial interference with the claimants’ freedom of expression and thus no limitation of s. 2 (b).

The majority was concerned with whether Ontario’s actions limited the freedom of expression of candidates and/or voters participating in the 2018 Toronto municipal election and whether the unwritten constitutional principle of democracy could be applied to narrow provincial legislative authority over municipal institutions to override those actions.

The majority held that diminished effectiveness might be enough to amount to a limit of s. 2(b) in its traditional negative orientation. Under the Baier framework to be applied to this action, more was required under. In the context of a positive claim, only extreme government action that extinguishes the effectiveness of expression — for instance, instituting a two‑day electoral campaign — may rise to the level of a substantial interference with freedom of expression. That may effectively preclude meaningful expression in the context of the election. They held that section 2(b) is not a guarantee of the effectiveness or continued relevance of a message, or that campaign materials otherwise retain their usefulness throughout the campaign.

The majority then turned to the claim that the reduction of wards infringed on the right to effective representation of s. 3 of the Charter. That section applies to federal and provincial elections. Notwithstanding this limitation, the majority held that what mattered was the relative population of the wards, not their absolute size. The majority could not ignore that the 25‑ward structure imposed by Ontario actually enhanced voter parity, relative to the 47‑ward structure preferred by Toronto.

The second major issue on appeal was whether the change in ward structure violated the unwritten principle of democracy by denying voters effective representation and disrupting the election process. The majority held that unwritten principles do in fact form part of the law of Canada’s Constitution, in the sense that they form part of the context and backdrop to the Constitution’s written terms. Unwritten constitutional principles were not “provisions of the Constitution”, they held. Their legal force lies in their representation of general principles within which our constitutional order operates and, therefore, by which the Constitution’s written terms — its provisions — are to be given effect. In practical terms, this means that unwritten constitutional principles may assist courts in only two distinct but related ways. First, they may be used in the interpretation of constitutional provisions. Second, they can fill gaps and address important questions on which the text of the Constitution is silent. What they cannot do is invalidate legislation, they majority held.

In conclusion, the majority held that even where the City had established that Ontario’s action were inconsistent with the principle of democracy, a court could not rely on that inconsistency to find those actions unconstitutional. Ontario actions were pursuant to a valid legislative process and they had no obligation to consult with the City before introducing legislation. Also, despite their value as interpretive aids, unwritten constitutional principles could not be used as bases for invalidating legislation. The text of Canada’s Constitution makes clear that municipal institutions lack constitutional status, leaving no open question of constitutional interpretation to be addressed and, accordingly, no role to be played by the unwritten principles.

The minority’s reasons centred on the principle of elections and democracy. They saw the issue as not whether Ontario had the legal authority to change the municipal wards, but whether it could do so in the middle of an ongoing municipal election. They pointed to the fact that the democratically accountable character of municipalities had been established in jurisprudence.

In the electoral context, the minority held, freedom of expression involved the rights of both candidates and voters to reciprocal deliberative engagement.

An election is a process of allowing candidates and voters, as both speakers and listeners, to participate in reciprocal discourse so that their respective views can be fully expressed and heard. It is only through this process of free public discussion and debate that an informed vote can be cast, and ultimately, those elected can be responsive to the views of the electorate.

They pointed to evidence of the changing of the ward boundaries had on candidates who had been campaigning in earnest for quite some time. There was also evidence of electors’ disappointment with the number of candidates that opted to drop out of running in the new, larger wards after the change.

The minority pointed to the lack of any evidence or explanation for the timing of Ontario’s action, that no pressing and substantial objective existed for the change, which could not “save” the actions under s. 1 of the Charter. They concluded that unwritten principles could be used to invalidate legislation if a case arises where legislation is not covered by any express constitutional provision but is fundamentally at odds with the Constitution’s “internal architecture” or “basic constitutional structure.” This would undoubtedly be a rare case, they said. They took exception to the majority’s conclusion that unwritten principles were not available to invalidate legislation: “Never, however, has this Court, until now, foreclosed the possibility of all unwritten constitutional principles ever invalidating legislation.”

Michael Binetti
Affleck Greene McMurtry LLP

Michael Binetti

Michael Binetti, a partner of the firm, brings a proven litigation background plus extensive experience in arguing both trials and appeals. He has demonstrated his strategic legal capability and expertise in wide-ranging areas of litigation. Michael’s peers and clients have commented that Michael is an “excellent and creative lawyer,” “finds unique solutions to complex problems,” and that “Michael gets it and knows how to win.”

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