Supreme Court upholds Ontario act that reduced Toronto council during election

City of Toronto loses its appeal; legislation was constitutional, SCC rules in 5/4 decision

Supreme Court upholds Ontario act that reduced Toronto council during election
Jacob Klugsberg of McCarthy Tétrault LLP, left, and Paul Koven of the Toronto District School Board.

In a 5/4 decision the Supreme Court of Canada has dismissed the City of Toronto’s appeal against Ontario legislation that saw ward boundaries redrawn during a municipal election.

The ruling upholds the concept that unwritten constitutional principles cannot serve as the basis for invalidating legislation, and that municipal councils do not have standing in the Constitution.

“What you see in the majority decision is a commitment to the primacy of the Constitutional text,” says Jacob Klugsberg of McCarthy Tétrault LLP in Toronto, who was co-counsel for the intervener Canadian Constitution Foundation in the case.

“The decision made very clear that a purposive interpretation of Charter rights must begin with and must be rooted in the text itself, and it must not overshoot the purpose of that right,” he adds.

The court was deeply divided, though – not only at the Supreme Court, but also at the Ontario court of appeal, says Paul Koven, associate general counsel for the Toronto District School Board, and counsel of record for the intervener Toronto District School Board.

“In total, there were 15 jurists involved in hearing this matter, from its very outset to the Supreme Court of Canada,” Koven notes.

“Out of those 15 judges … , eight of them held one view and seven of them held an opposing view; so, this is a very deeply divided set of issues that were before the court. Difficult facts make for difficult decisions,” he says, adding that it was “unprecedented that a provincial government would interfere with a municipal election once it had commenced.”

Background

On May 1, 2018, elections began for Toronto city council and for trustees of the Toronto District School Board. After nomination periods closed and during the course of the election, the Legislative Assembly of Ontario enacted its Better Local Government Act, which disrupted election campaigns by reducing Toronto’s municipal wards from 47 to 25.

The City of Toronto and two groups of private individuals applied to the Ontario Superior Court of Justice seeking orders restoring the 47-ward structure and challenging the constitutionality of the new Act. They argued the law violated the freedom of expression of candidates and voters, contrary to section 2(b) of the Canadian Charter of Rights and Freedoms, and that it violated certain unwritten constitutional principles, such as democracy.

The Toronto District School Board was added as an intervening party and challenged changes to Regulations under the Education Act, since school trustee elections take place simultaneously to municipal elections and the former were therefore disrupted as well by the ward redistributions.

On September 10, 2018, the Ontario Superior Court of Justice issued an order declaring that the legislative changes infringed s. 2(b) of Charter and were of no force and effect. On September 19, 2018, the Court of Appeal for Ontario issued an interim stay of the Ontario Superior Court of Justice’s decision. The elections proceeded based on 25 wards with the revised boundaries. On September 19, 2019, the Court of Appeal, in a 3/2 split, allowed the appeal and set aside the Ontario Superior Court of Justice’s decision.

Ruling

In Toronto (City) v. Ontario (Attorney General), the majority of the Supreme Court found that s. 2(b) of Charter of Rights was not violated by the new law because it did not preclude meaningful expression, as guaranteed by section 2(b) of the Charter.

Nor did the majority find that there was a violation of s. 3 of the Charter, which holds that “Every citizen of Canada has the right to vote in an election of the members of the House of Commons or of a legislative assembly and to be qualified for membership therein.”

Unwritten constitutional principles cannot invalidate a law

The CCF’s position was “that section 3 of the Charter protects participation in provincial and federal elections, and that municipal elections were intentionally left out of this right when the Charter was drafted,” says Klugsberg.

The majority agreed.

Section 3  democratic rights were not extended to candidates or electors to municipal councils,” Chief Justice Richard Wagner and Justice Russell Brown wrote for the majority, which included Justices Michael Moldaver, Suzanne Côté and Malcolm Rowe. “This is not a gap to be addressed judicially. The absence of municipalities in the constitutional text is, on the contrary, a deliberate omission … “

The majority reasons provide “understanding that the reason we have a written Constitution is because as a country we have made certain choices about what would be protected and what wouldn’t be,” Klugsberg told Canadian Lawyer.

“The majority's decision clearly states that unwritten principles are not provisions of the Constitution and they can't extend to invalidate legislation or expand … the reach of written constitutional provisions.”

The majority outlines two ways in which unwritten principles can be used: first, in the interpretation of constitutional provisions, where the text is not clear; and second, to develop structural doctrines that are unstated in the written Constitution but flow from its architecture.

“When applied to Charter rights, unwritten principles assist with purposive interpretation, informing ‘the character and the larger objects of the Charter itself,’ … the majority said.

The dissenting justices found that the timing of the legislation – just two months before Toronto’s October 2018 election day – violated the unwritten constitutional principles of democracy.

“Completely revamping the electoral process in the middle of an election was unprecedented in Canadian history,” wrote Justice Rosalie Abella for the minority, including Justices Andromache Karakatsanis, Sheilah Martin and Nicholas Kasirer.

“Unwritten constitutional principles are not, as the majority suggests, merely ‘context’ or ‘backdrop’ to the text,” Justice Abella wrote. “On the contrary, unwritten principles are our Constitution’s most basic normative commitments from which specific textual provisions derive. … Constitutional text emanates from underlying principles, but it will not always be exhaustive of those principles. In other words, the text is not exhaustive of our Constitution. …

Provinces have authority over municipalities

Section 92(8) of the Constitution allows provinces to pass laws affecting municipalities, which was not in dispute in this case.

“Subject to the Charter, the province has ‘absolute and unfettered legal power’ to legislate with respect to municipalities,” the majority justices wrote. “And this Court cannot grant constitutional status to a third order of government ‘where the words of the Constitution read in context do not do so’ (Baier, at para. 39).

“Unlike in the Provincial Court Judges Reference, therefore, there is no textual basis for an underlying constitutional principle that would confer constitutional status on municipalities, or municipal elections.”

The court was faced with “a difficult conundrum,” says Koven.

“On the one hand, a municipality like the City of Toronto is a creature of statute,” he says, which gets its  powers not from the Constitution Act or the Charter, but from the Municipal Act, “which is simply a provincial law. And like any other provincial law, the provincial government has an absolute right to modify or amend that law.”

The majority therefore took the view that there was nothing inherently improper about the Province of Ontario changing the rules of the election at the time that they did, “and because they had that authority or power to do so, there was nothing unconstitutional about what they did.”

Law did not violate the freedom of expression of candidates or voters

The majority found that all parties involved – including the City of Toronto and the Toronto District School Board – had sufficient time before the October 2018 election to adjust to the new electoral boundaries, and that the new law did not restrict what candidates or voters could say or do.

It also noted that section 2(b) of the Charter does not guarantee the effectiveness or relevance of messages or campaign materials.

The minority found that the timing of the legislation, by interfering with political discourse in the middle of an election, was a clear breach of s. 2(b) of the Charter. By the time the new legislation came into force on August 14, 2018, candidates had been campaigning and engaging with voters for 105 days in the existing 47 wards, and voters who “had expressed their views to their preferred representatives had their political expression thwarted,” Justice Abella wrote.

The minority decision imports the position taken by the Toronto District School Board and the City of Toronto, amongst other organizations and municipalities, says Koven, “which is that democratic elections and the rights of candidates and voters to meaningfully express their views, is at the absolute core of political expression.

“That core is protected by the freedom of expression rights of the Charter,” he adds; “and so the same gut feeling that the average citizen on the street had to the change to the election rules in the middle of the election cycle was ultimately the same conclusion reached by the minority at both the Supreme Court of Canada and at the Court of Appeal, [that] a stable election period is critical to electoral fairness, … to meaningful political discourse, and should be free from interference once the election process has commenced.”

If there is no constitutional protection for municipalities, Koven says, “it leaves citizens in municipalities open to impairments of rules and rights going forward. So, this is absolutely an important landmark case going forward.”

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