Ontario Court of Appeal Finds Mid-Election Changes to Toronto City Council Constitutional
Last week, the Ontario Court of Appeal (“ONCA”) released a contentious, split decision in Toronto (City) v Ontario (Attorney General), 2019 ONCA 732 [Toronto] in which they adjudicated the constitutionality of the Better Local Government Act, 2018, SO 2018 C-11 (“BLGA”). The ONCA majority declared the BLGA to be constitutional, with no violations of section 2(b) of the Charter or of unwritten constitutional principles; however, this is likely not the end of the road for this case, as the City of Toronto plans to appeal the decision to the Supreme Court of Canada (“SCC”).
Political Context & Judicial History
Midway through Toronto’s 2018 municipal election, the Ontario government introduced the BLGA, which reduced the number of wards represented on City Council from 47 to 25. Condemned by critics as a political vendetta against the City of Toronto, the government maintained that their intent was to reduce inefficiency and dysfunction. After the initial decision from the Ontario Superior Court (“ONSC”), which found that the BLGA violated of s. 2(b) of the Canadian Charter of Rights and Freedoms, Premier Doug Ford threatened to invoke section 33 of the Charter—the ‘notwithstanding clause’—to allow the operation of the legislation despite the Charter violations. However, before needing to do so, ONCA granted the province a stay on the ONSC decision, finding it likely that the initial decision was erroneous and would be overturned upon appeal (Toronto (City) v Ontario (Attorney General), 2018 ONCA 761, para 12). As a result of the stay, the 2018 municipal election proceeded with 25 wards, while the Attorney General of Ontario appealed the initial decision.
The ONSC decision, City of Toronto et al v Ontario (Attorney General), 2018 ONSC 5151 (Toronto ONSC), found that the BLGA violated s. 2(b) in two distinct ways. First, Justice Belobaba held that the alteration of the electoral districts partway through the campaign period breached the candidates’ freedom of expression through frustrating their efforts to effectively convey their political messages (Toronto ONSC, para 31). Second, through using s. 3 jurisprudence to inform the interpretation of s. 2(b), he held that the drastic reduction of the size of City Council and the corresponding increase in the size of each remaining ward violated the voters’ rights to freedom of expression by impeding their ability to “cast a vote that can result in effective representation” (Toronto ONSC, para 51). In his view, neither of these violations could be upheld under s. 1, as there was insufficient evidence of a pressing and substantial objective that necessitated changing the composition of City Council mid-election.
The ONCA Majority Decision
The majority decision at the ONCA unequivocally rejected Justice Belobaba’s arguments, finding that the situation was a purely “political matter,” in which the Court had “no legitimate basis” to intervene (Toronto, para 6). They found that neither the candidates nor voters’ s. 2(b) rights were infringed by the BLGA and held that unwritten constitutional principles could not be used to invalidate the legislation.
The majority found that Justice Belobaba erred in concluding that the candidates’ freedom of expression was violated. Primarily, they argued that his reasoning incorrectly broadened the purpose of s. 2(b) by protecting the effectiveness of the expression, rather than just the expression itself (Toronto, para 39). In their view, section 2(b) “protects against interference with the expressive activity itself, not its intended result” (Toronto, para 41) and does not provide a guarantee that expression “will retain its value” (Toronto, para 46). The change to the City Council structure did not prevent candidates from communicating their political messages; it only reduced the relevance and effectiveness of a candidate’s “past communications”—thus, there was no infringement of their s. 2(b) rights (Toronto, para 41).
The majority also rejected Justice Belobaba’s importation of s. 3 jurisprudential principle into the analysis of the voters’ freedom of expression. In his decision, Belobaba referred to the concept of effective representation, a creature of s. 3 jurisprudence, to inform his s. 2(b) analysis, writing that “there is no principled reason why in an appropriate case the ‘effective representation’ value cannot inform other Charter provisions such as the voter’s right to freedom of expression under s. 2(b)” (Toronto ONSC, para 46). The ONCA majority vehemently disagreed, contending that it was an “erroneous conclusion that freedom of expression guarantees that a vote—in whatever context—must therefore satisfy the requirements for meaningful and effective representation guaranteed by s. 3 for voting in federal and provincial elections” (Toronto, para 73). In their view, each Charter right must be distinct and independent, such that “the content of one right cannot be subsumed by another, or used to inflate its content” (Toronto, para 76). Consequently, they rejected the claim that voters’ freedom of expression could be violated based on the principle of effective representation.
Finally, the majority decision firmly rejected the use of unwritten constitutional principles to overturn legislation. They devoted little time to an analysis of the rule of law and democracy principles, and instead noted that even if the BLGA were to violate either principle, “there would be no legitimate basis for this court to invalidate the BLGA based on this inconsistency” (Toronto, para 86).
The ONCA Dissent
The minority decision dissented strongly with the majority’s analysis of the candidates’ freedom of expression, and sided with the ONSC decision, finding a significant breach of s. 2(b) that could not be upheld under s. 1. They held that the majority decision fundamentally misconstrued the expressive activity impacted by the BLGA as just “a person’s past communications,” believing instead that “political expression during an active municipal election consists of far more than the pursuit or casting of a ballot on voting day” (Toronto, para 117–118). They referred to the factum of the David Asper Centre for Constitutional Rights, which explained that freedom of expression in the context of an election “is not simply the right of candidates and the electorate to express views and cast ballots. It expands to encompass a framework for the full deliberative engagement of voters, incumbents, new candidates, volunteers, donors, campaign organizers and staff, and the media, throughout a pre-determined, stable election period” (Toronto, para 117). The minority decision held that freedom of expression, properly understood, should protect this range of expressive activities from “mid-stream election interference” (Toronto, para 118).
Additionally, the minority disagreed with the majority’s assessment of the ONSC decision as affording s. 2(b) too expansive a purpose by protecting the effectiveness of the expression as well as the expression itself (Toronto, para 119). They explained that once the election period starts, candidates make decisions about running, fundraising, publicizing their views, and campaigning, while voters learn about candidates, and begin to formulate opinions and question (Toronto, para 121–122). These are all expressive activities that ought to be protected by s. 2(b). The minority explains,
Free expression in this context would be meaningless if the terms of the election, as embodied in the legal framework, could be upended mid-stream. The instability and risk of meddling this would create is irreconcilable with genuine democratic deliberation. This, in my view, is where s. 2(b) comes into play. As the Supreme Court of Canada stated in Haig, although a government is generally not required to provide platforms for expression, where it chooses to provided done, it must do so in a manner that complies with the Charter… This entails an obligation on governments to respect the s. 2(b) rights of all persons to freely express themselves within the terms of a municipal election once that election has commenced. The intersection of s. 2(b) of the Charter and the unwritten constitutional principle of democracy requires nothing less. (Toronto, para 123)
Thus, the minority concluded that the BLGA undermined the candidates’ freedom of expression on several grounds: diminishing the value of their past expression under the original parameters of the election; causing “widespread confusion and uncertainty,” which deflected attention from the political issues themselves; and preventing candidates and all other election participants from “continuing to express themselves within the established terms of an election then in progress” (Toronto, para 128). The last ground in particular formed the basis of the minority’s finding of a s. 2(b) violation. Finally, like the ONSC decision, the minority found that the BLGA’s s. 2(b) violations could not be upheld under s. 1 of the Charter, as there was no pressing and substantial objective that necessitated the change to City Council partway through the election (Toronto, para 134). Instead, they concluded that the timing and implementation of the BLGA “left a trail of devastation of basic democratic principles in its wake,” causing a s. 2(b) infringement that was “extensive, profound, and seemingly without precedent in Canadian history” (Toronto, para 136).
Future Appeal to the SCC
The City of Toronto intends to appeal this decision to the SCC. Provided leave is granted, which seems likely given the strong dissent and clear split in opinions, this case provides an opportunity for the SCC to comment on two pressing legal issues, beyond the resolution of the contentious situation itself.
First, although both the minority and majority agreed on this point, this case provides another opportunity for the SCC to bring clarity to the role and application of unwritten constitutional principles. Generally, Canadian jurisprudence has refused to invalidate legislation based solely on unwritten constitutional principles (see, for example, Imperial Tobacco, 2005 SCC 49, or the more recent Quebec v Canada, 2015 SCC 14), though some prominent cases do allow for the possibility. Most famously, the Reference re Secession of Quebec,  2 SCR 217, explains that while unwritten constitutional principles could not take precedence over the written text of the Constitution, in some cases, “[u]nderlying constitutional principles may in certain circumstances give rise to substantive legal obligations…which constitute substantive limitations upon government action” (para 53). In “The Judges Reference and the Secession Reference at Twenty: Reassessing the Supreme Court of Canada’s Unfinished Unwritten Constitutional Principles Project,” Alyn James Johnson has identified several additional cases like the Reference re Manitoba Language Rights,  1 SCR 721, OPSEU v Ontario,  2 SCR 2 and MacMillan Bloedel Ltd v Simpson,  4 SCR 725, in which “the Supreme Court recognized a legal rule, derived from the abstract constitutional principle of democracy, capable of overruling…predatory legislation should it materialize” (1082). Specifically, Johnson notes that OPSEU “provides that unwritten rules can…in appropriate circumstances, trump legislative enactments” (Johnson, 1084). Thus, given the inconsistencies in the jurisprudence regarding whether, and when, unwritten constitutional principles can be used to invalidate legislation in particular, this case provides the SCC with a novel opportunity to consider the role of unwritten principles like the rule of law and democracy in adjudicating the constitutionality of legislation like the Act in question.
Additionally, the SCC will have the chance to comment on the scope of entitlement under s. 2(b), an important prospect given the fundamental disagreement between the ONCA majority and minority. The majority’s imposition of a dichotomy between expression itself and the effectiveness of the expression seems to be problematic—in the electoral context in particular, as the minority noted, it seems implausible to neatly separate expressive activities from their efficacy. Hopefully, the SCC will be able to provide guidance as to the exact nature of the s. 2(b) protection, both in the electoral context and beyond.
The 2018 Toronto election has long since passed, meaning that at this point, the case has become largely about theoretical legal principles rather than the resolution of an active dispute. Nevertheless, the likely appeal to the SCC presents an opportunity for Canada’s highest court to provide clarity to these ongoing, unresolved legal issues.