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Say what you want: A closer look at Toronto (City) v. Ontario (Attorney General) and the limits of power

5 minute read

It is trite to say that the first three months of 2020 have been unprecedented. This includes an unprecedented amount of cooperation between the three levels of government. While this health crisis has seemingly brought together the federal, provincial (at least, Ontario) and municipal governments, the Supreme Court of Canada will hear two appeals this year that lays bare their significant differences.

In Examinations, our first annual review of cases and forecast for the year ahead, we highlighted the upcoming Greenhouse Gas Reference between, among others, the Ontario and Canadian governments as a key appeal to watch in 2020. In late March, the Supreme Court of Canada granted leave from a decision arising from another fight between levels of government, Toronto (City) v. Ontario (Attorney General), 2019 ONCA 732.

In the middle of the 2018 municipal election campaign, the newly elected Ford government in Ontario passed legislation to reduce the number of wards in Toronto from 47 to 25. Toronto brought an application to the Superior Court seeking that the Better Local Government Act be declared unconstitutional and that the 47 ward system be restored. Finding violations of s.2(b) of the Charter on behalf of the candidates and the voters, Justice Belobaba ruled in favour of Toronto.

Ontario appealed and brought a motion to stay the effect of the decision. The stay was granted and the election proceeded based on 25 wards. By the time that the appeal was heard before a 5 judge panel of the Ontario Court of Appeal, the election had taken place and no party was seeking to set it aside. Toronto argued that the Act should nonetheless be declared unconstitutional.

Writing for the majority in a 3-2 decision, Miller J.A. noted that the issue “is not whether the legislation is good or bad policy, was fair or unfair; the question is whether it violates the Charter or is otherwise unconstitutional”. He found that it did not, and was not. In doing so, he rejected that the change in the number of wards violated the candidates’ freedom of speech, noting that the s. 2(b) right protects persons from government interference with freedom of speech but does not guarantee the relevance or effectiveness of past or future speech. Toronto had argued that the candidates’ free speech rights had been interfered with as, inter alia, they had spent time and money in engaging with voters, some of whom may not even be eligible to vote for them because of the new structure and, further, that there was less civic engagement on the issues as the Act had dominated discussions. Justice Miller found that the case was properly framed as a positive rights case, i.e., the right of a candidate to a particular election platform, and the test for a breach was not met. Candidates remained free to say whatever they wanted to say. Section 2(b) was not violated.

Justice Miller also rejected the application judge’s finding that the Act violated s.2(b) because of the impact of effective representation for voters. While s. 3 of the Charter protects the right to vote and the right to run for office, it does not apply to municipal governments. Sections 2(b) and 3 are distinct rights and while there may be overlap between Charter rights, one could not use s.3 to enlarge the scope of s.2(b).

Finally, Justice Miller rejected the argument that unwritten constitutional principles, such as the importance of democracy and the rule of law, could act as an independent basis to find the Act to be invalid. While unwritten constitutional principles can be used to fill gaps in interpretation, they do not “invest the judiciary with a free-standing power to invalidate legislation”.

Justice MacPherson, writing for the minority, agreed on all issues except one. Clearly concerned about the timing of the Act, months into an election campaign, he found that it “represented a substantial attack on the centrepiece of democracy in an established order of Canadian government – an active election in a major Canadian municipality.” He found that the s. 2(b) rights of the candidate were violated, on the basis that the expressive rights that were interfered with were the full deliberative engagement of all interested parties in an election, including the candidates, voters and the media, within the confines of the established terms of the election process. Having found no pressing and substantial objective, the Act could not be saved under s.1.

While the Supreme Court of Canada does not provide reasons for leave, a review of the leave factums provides some insight into the issues that the Court will have to determine. Toronto pitched this case as providing the Court with an opportunity to comment on the applicability of s. 2(b) to “electoral expression” and to review the positive rights framework previously established by the Court in Baier. Importantly, this case squarely puts before the Court the use that can be made of unwritten constitutional principles, including whether, on their own, those principles can be relied on to invalidate legislation. The Supreme Court of Canada has previously left that issue open. Assuming that it finally addresses it in this case, its decision will shape constitutional law in a significant way, as its decision will not be confined to s.2(b) jurisprudence.

It is not known when the Court will hear this case or indeed any case. What is clear is that both this case and the Greenhouse Gas Reference will define the scope and limits of provincial power for the years ahead.

Cynthia B. Kuehl

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