SCC Narrowly Rules Mid-Election Changes to Toronto City Council were Charter-Compliant
Three months into the 2018 Toronto City Council election, a newly elected provincial government passed the Better Local Government Act, 2018, SO 2018, c 11 [Act], slashing the number of municipal wards from 47 to 25. “For the remaining campaign period,” writes Justice Abella, dissenting in Toronto (City) v Ontario (Attorney General), 2021 SCC 34 [Toronto], “candidates spent more time on doorsteps discussing the confusing state of affairs with voters than the relevant political issues.”
Nevertheless, a slim 5-4 majority of the Supreme Court of Canada (“SCC”) held that the Act did not interfere with voters’ and candidates’ freedom of expression under section 2(b) of the Canadian Charter of Rights and Freedoms [Charter]. The distinct ways in which the majority and the dissent characterize the claim in this case have important implications for future litigation under section 2(b).
In November 2016, Toronto City Council passed two Bylaws to increase the number of municipal wards from 44 to 47 (Toronto, paras 91-96). On July 27, 2018, the same day that nominations closed for the 2018 municipal election, the provincial government announced for the first time that it would establish a 25-ward structure (Toronto, para 100). The Act came into force on August 14th, at which point the municipal election was more than halfway through (Toronto, para 102).
The Superior Court of Justice granted the City of Toronto’s (“City”) urgent application to declare the Act invalid. The application judge held that redrawing the boundaries mid-election was an unjustified infringement of freedom of expression under section 2(b) of the Charter (Toronto, para 9). However, the Ontario Court of Appeal stayed this decision the next day, allowing the election to proceed under the 25-ward structure (Toronto, para 10).
The parties returned to the Court of Appeal a year later to argue the merits of the case. A 3-2 majority overturned the application judge’s decision, finding that he had mischaracterized the nature of the claim, which led him to apply the wrong legal test (Toronto, para 11). The appellate court also held that unwritten constitutional principles cannot be used to invalidate Charter-compliant legislation, nor can they limit the provincial legislature’s exclusive authority to legislate in respect of municipal institutions under section 92(8) of the Constitution Act, 1867 (Toronto, para 11). You can read more about this decision in Senior Contributor Ali Imrie’s post from October 2019.
SCC Majority Decision
Two issues arose on appeal. The first was whether the Act unjustifiably infringed the free expression of participants in the 2018 municipal election. The second was whether the unwritten constitutional principle of democracy invalidates the Act by narrowing provincial legislative authority over municipal institutions, or by establishing a right to effective representation for municipalities (Toronto, para 13).
The majority agreed with the Court of Appeal on both issues and dismissed the case.
The Act does not limit freedom of expression
Section 2(b) of the Charter protects freedom of thought, belief, opinion and expression.
The majority’s section 2(b) analysis starts by characterizing the nature of the obligation the claim seeks to impose on the state (Toronto, paras 18, 20). Characterizing the obligation determines what test the court must apply. Typically, the claimant seeks to restrain the government from interfering with an expressive activity in which the claimant is otherwise free to engage (Toronto para 16). These can be referred to as “negative claims.” In rarer circumstances, the claimant seeks to impose an obligation on the government to take some action to enable or support free expression, including by legislation (Toronto, para 17). These can be referred to as “positive claims.”
Negative claims engage the two-step inquiry set out in Irwin Toy v Quebec (Attorney General),  1 SCR 927 [Irwin Toy]. Under this framework, the claimant must demonstrate that the activity under consideration conveys or attempts to convey meaning, and that the impugned government legislation or action interferes with that activity, in purpose or effect (Toronto, para 14).
Positive claims engage the framework established more recently in Baier v Alberta, 2007 SCC 31 [Baier]. The majority in Toronto distilled the three-part framework from Baier into a single question:
Was the claim grounded in the fundamental Charter freedom of expression, such that, by denying access to a statutory platform or by otherwise failing to act, the government had either substantially interfered with freedom of expression, or had the purpose of interfering with freedom of expression? (Toronto, para 25)
The majority explains that a substantial interference is one that “radically frustrat[es]” expressive activity to the point of “effectively preclud[ing]” meaningful expression (Toronto, para 27). Positive claims must satisfy a higher threshold—substantial interference—because otherwise, it would be too easy for claimants to show that the absence of a particular statutory platform limits their freedom of expression (Toronto, para 18).
The majority characterized the City’s claim as a positive one (Toronto, para 29). Either the City was seeking to restore the earlier 47-ward structure, or it was asking the Province to maintain whatever statutory platform exists at the outset of an election, for the duration of that election. Per the majority, either version of the claim would impose a positive obligation on the Province (Toronto, paras 30-33).
Proceeding to apply the Baier framework, the majority finds that the City failed to demonstrate that the Act substantially interfered with freedom of expression. The majority observes that candidates had 69 days left to campaign after the Act came into force, longer than most federal and provincial elections (Toronto, paras 36, 37). The majority could not find any restrictions in the Act on the content or meaning of candidates’ political speech (Toronto, para 37). Moreover, campaign spending limits increased, allowing candidates to raise more funds, which many continued to do. The lost relevance of prior speech and campaign materials under the 47-ward model was not persuasive (Toronto, paras 38-39).
As the City did not submit that the Act interfered with free expression in purpose, the claim failed at the first stage of the section 2(b) analysis.
Unwritten constitutional principles have “full legal force” as interpretive aids, but not as devices to invalidate legislation independently of the text
While unnecessary for deciding the merits of the case, both the majority and the dissent offer comments on the second issue on appeal. These comments reveal a deep disagreement on the proper interpretation of earlier SCC decisions concerning unwritten constitutional principles.
The majority observes that the abstract nature of unwritten principles, such as democracy and federalism, creates the risk of applying interpretations that render constitutional provisions redundant or in conflict with the framers’ intentions. Written norms, in contrast, provide legal certainty and predictability (Toronto, paras 58-59, 72-73). As context and backdrop to the written terms of the Constitution, the principles can give effect to the text by interpreting provisions that are not sufficiently definitive or comprehensive, or by filling gaps and constructing doctrines for the sake of coherence (Toronto, paras 55-56). In short, the text is primary.
For the dissent, the Province’s authority to legislate changes to Toronto’s municipal ward structure is undeniable—but besides the point (paras 89, 112, 114). The real issue was the timing of the Act.
The positive/negative distinction is unnecessary for adjudicating section 2(b) claims
A significant point of disagreement between the majority and the dissent is the latter’s interpretation that the Baier framework is meant to address underinclusive statutory regimes, not the more nebulous concept of “positive claims” (Toronto, para 148). All nine justices agree that rights have positive and negative dimensions in the sense that they are enforced by a state apparatus (positive) and require states not to intervene where it would be unlawful to do so (negative) (Toronto, paras 20, 152). However, the dissent is more skeptical of the court’s ability to characterize claims as essentially positive or negative for the purpose of adjudicating Charter claims (Toronto, paras 149-155). They are especially concerned about extending the Baier analysis where it would be inappropriate to do, as the higher threshold “adds a gratuitous hurdle” (Toronto, para 156).
On the facts of this case, the dissent concludes that the issue for the City was not an underinclusive statutory platform. Instead, it was the timing of the Act. As such, they apply the Irwin Toy analysis and find that the timing interfered with the stability of the electoral process that was underway (Toronto, paras 151, 156). This in turn interfered with participants’ freedom to engage in a reciprocal political discourse for the remainder of the election (Toronto, para 147).
A stable election period is necessary to protect meaningful expression between candidates and voters
A reciprocal political discourse unfolds during an election as communications are exchanged between participants to ensure voters can make informed choices and candidates can respond to local concerns (Toronto, paras 127-132). Election rules, including ward boundaries, structure this discourse (Toronto, paras 87, 134). State interference with this stability limits free expression by affecting participants’ ability to engage in a meaningful reciprocal political discourse (Toronto, para 115).
The dissent finds that the Act interfered with this discourse by expanding the ward boundaries overnight, requiring candidates to engage on different local issues and establish new relationships with voters in less time (Toronto, para 104). The fate of the 25-ward model remained uncertain until the Court of Appeal stayed the lower court’s declaration of invalidity. The period of uncertainty before the stay diverted attention away from the relevant policy issues (Toronto, para 147). By the time citizens could be certain of the ward boundaries and the candidates in their area, just over a month remained until voting day. Amidst all the chaos and attendant fundraising challenges, many campaigns were unable to sustain themselves (Toronto, para 105). Notably, where the majority takes a high-level view of how the Act affected participants, Justice Abella gives voice to individual candidates and supporters, quoting extensively from testimonials submitted in support of the City’s position (Toronto, paras 36-40, 137-143).
Altogether, the dissent concludes that the timing of the Act was an unjustified infringement of electoral participants’ freedom of expression (Toronto, para 162).
Unwritten constitutional principles may invalidate legislation in their own right
In contrast to the majority, the dissent sets out that unwritten constitutional principles are more than context or backdrop. In fact, they are the “‘lifeblood’” of the Constitution, embodying its “‘vital unstated assumptions’” and “most basic normative commitments” (Toronto, paras 167-168; internal citations omitted). Per Justice Abella, the text of the Constitution emanates from these principles but is not exhaustive of them (Toronto, para 168). For this reason, the text is not primary. Instead, the written and unwritten norms are coequals, and so both can be the basis for invalidating constitutionally infirm legislation (Toronto, para 178).
Political speech during an election falls about as close to the core of section 2(b) as one can get. For that reason, more attention should have been paid to the narrow circumstances in which the Baier framework ought to apply. The consequence of misapplying this framework is that rights that fail to clear the extremely high threshold for a substantial interference under Baier, would and should be protected under Irwin Toy. This is what happened here. The misapplication may be attributed to the majority’s positive/negative analytical approach to characterizing section 2(b) claims and its rejection of the dissent’s position that Baier should be restricted to claims for inclusion in an underinclusive statutory platform.
For the majority, claims that seek to preserve a statutory platform also seek to impose a positive obligation on the state (Toronto, para 19). The problem, however, is that preservation and non-interference are two sides of the same coin. A request to preserve the statutory platform is equally a request not to interfere with it. Claims for non-interference, or restraint, fall within the purview of an Irwin Toy analysis. Restricting Baier to issues of underinclusion avoids the ambivalence of a positive/negative framing. Moreover, it hews more closely to the facts of Baier, as well as the section 2(d) freedom of association case on which that framework is based, Dunmore v Ontario, 2001 SCC 94. In both cases, the claimants argued that their exclusion from the impugned legislation infringed upon their fundamental freedoms.
It is true that in Baier, the claimants tried, unsuccessfully, to couch their request to preserve the previous version of the legislation in the language of a negative claim (Baier, paras 34-36). This would seem to suggest that Baier applies to claims to preserve a statutory platform, as the majority contends in Toronto. It would also appear to endorse the positive/negative analytical approach. But notice that the effect of maintaining the pre-existing statutory platform in Baier would have been to remedy the claimants’ exclusion. The earlier platform allowed the claimants to run for school trusteeships while the amended version did not. As a general matter, the remedy for underinclusion is to instate or keep in place a particular statutory platform that includes the excluded group.
In Toronto, the City sought in the alternative a declaration to the effect that the Province must maintain the statutory framework that is in place at the start of an election period, for the duration of the election (Toronto, para 31). This is not preservation for the sake of inclusion, the way it is in Baier. There was nothing underinclusive about the Act; no one was excluded from participating in the election. Instead, the request is about not interfering with the stability of the structural conditions necessary for sustaining a reciprocal political discourse. It is baffling to me that the majority construes this as a request to give temporary protection to a particular statutory regime. As I see it, the City, at least in its alternative request, was not seeking access to a particular platform. What mattered was only that the framework, whatever it is—47 wards, 25 wards, etc.—remain the same from start to finish. In brief, preservation as non-interference does not equate with preservation as the remedy for underinclusion. Only the latter warrants an application of the Baier test.
Some may protest that the underinclusion approach makes it too easy for claimants to succeed in a section 2(b) claim. It is worth remembering that when the burden shifts to the government to justify an infringement, this justification need only address the limitation, not the legislation as a whole. In Toronto, the Province would have needed to address the timing of the Act, not the wisdom behind a 25-ward model. This, surely, is respectful of provincial legislative authority, the paramount concern of the majority.
Altogether, the cost of misapplying Baier, as I think the majority did here, was significant. It undermined the integrity of local democracy. Creature of provincial statute or not, a municipality cannot meaningfully engage in a reciprocal political discourse about important policy issues if this discourse can be interrupted on seemingly any whim of the municipality’s creator.