Unwritten Principles and Administrative Law: Implications of Toronto (City) v Ontario (Attorney General) for the Doré Framework
Manula Adhihetty, 3L, Volume 80 Senior Editor
In Toronto (City) v Ontario (Attorney General), 2021 SCC 34 (CanLII) (Toronto (City)), the Supreme Court developed its jurisprudence on s. 2(b) of the Canadian Charter of Rights and Freedoms and the status of unwritten constitutional principles. The Court’s position on the status of unwritten constitutional principles has interesting and important implications for administrative law, in particular to the Doré framework for judicially reviewing administrative decisions that allegedly infringe a Charter right. Toronto (City) likely modifies the Doré framework. Following Toronto (City), a court reviewing such a decision would likely have to assess whether the impugned decision reflects a proportionate balancing of the applicable Charter right – not the Charter value – with the relevant statutory objective in the circumstances of the case.
Background
The City of Toronto municipal election campaign began on May 1, 2018, with candidates registering to run in 47 wards. On July 27, 2018, the last day for nominations, Ontario announced that it would introduce legislation reducing the size of Toronto City Council. The Better Local Government Act, 2018 (the “Act”) came into force on August 14, 2018, reducing the number of wards from 47 to 25.
The City challenged the constitutionality of the Act and sought orders restoring the 47-ward structure. The Ontario Superior Court of Justice held that the Act unjustifiably infringed municipal candidates’ and voters’ right to freedom of expression under s. 2(b) of the Charter. This is because it substantially interfered with the candidates’ ability to effectively communicate their message to relevant voters, undermined a fair and equitable election process, and denied voters’ right to effective representation.
The Court of Appeal for Ontario stayed this decision and allowed the election to proceed based on the 25-ward structure. The court later allowed the appeal, holding that the Act did not infringe s. 2(b) of the Charter. The court also held that unwritten constitutional principles, such as the principles of democracy and the rule of law, do not provide independent bases for invalidating legislation under s. 52(1) of the Constitution Act, 1982, which states that any law that is inconsistent with the Constitution is of no force or effect to the extent of the inconsistency.
The Supreme Court’s Decision
Two issues were before the Supreme Court. First, did the Act unjustifiably infringe the freedom of expression of candidates or voters participating in the municipal election? Second, was the Act invalid because the unwritten constitutional principle of democracy narrows provincial legislative authority over municipal institutions, or requires effective representation in those institutions?
Majority
Wagner CJ and Brown J, writing for a 5-4 majority, dismissed the appeal. With respect to s. 2(b), the majority distinguished between “positive” and “negative” claims. Under a “positive” claim, the claimant would seek to impose an obligation on the government or legislature to provide access to a particular statutory or regulatory platform for expression. Under a “negative” claim, the claimant would seek “freedom from government legislation or action suppressing an expressive activity in which people would otherwise be free to engage” (Toronto (City) at para 16, citing Baier v Alberta, 2007 SCC 31 (CanLII) at para 35).
The majority held that the framework from Baier v Alberta applies to all positive claims under s. 2(b), not merely to claims involving underinclusive statutory regimes (Toronto (City) at paras 18-19). Under this framework, the government would infringe s. 2(b) by denying access to a statutory platform or otherwise failing to act if and only if (a) the government’s purpose was to interfere with the freedom of expression, or (b) the effect of the government’s action or inaction was to substantially interfere with the freedom of expression (Toronto (City) at para 25). The lack of access to a statutory platform “substantially interferes” with the freedom of expression when it radically frustrates expression to such an extent as to effectively preclude meaningful expression (Toronto (City) at para 27).
The majority characterized the claim for the ward structure that existed at the outset of the campaign as a positive one (Toronto (City) at paras 30-32). Applying the Baier framework, it held that the Act did not infringe s. 2(b) because it did not substantially interfere with the freedom of expression of candidates or voters. Candidates and voters had 69 days to re-orient their messages and express themselves freely under the new 25-ward structure (Toronto (City) at para 37). The fact that the campaign was vigorously contested further indicated that the Act did not radically frustrate the freedom of expression of candidates and voters, even if it diminished the effectiveness of their expressions (Toronto (City) at para 40).
Regarding the second issue, the Court held that unwritten constitutional principles can never be independent grounds for invalidating legislation. Unwritten constitutional principles “form part of the context and backdrop of the Constitution’s written terms” (Toronto (City) at para 50): they emanate from, and are constrained by, the constitution’s textual provisions and basic structure (Toronto (City) at paras 65, 73, 75-76). Further, they can only be used to interpret constitutional provisions purposively or to develop unwritten structural doctrines that are necessary to the coherence of, and which flow by implication of, the constitution’s architecture (Toronto (City) at paras 54-56). But neither of these uses amounts to using unwritten constitutional principles as an independent basis to invalidate legislation (Toronto (City) at para 57).
Dissent
Writing for the dissent, Abella J held that although Ontario has the legislative authority under s. 92(8) of the Constitution Act, 1867 to change the municipal wards in general, it lacks the legislative authority to do so in the middle of an ongoing municipal election (Toronto (City) at paras 89-90). In particular, the Act is invalid because its timing infringes the freedom of expression under s. 2(b) (Toronto (City) at para 147).
Regarding s. 2(b), Abella J declined to apply the Baier framework to this case. She explained that this framework, which was designed to deal with claims involving underinclusive statutory regimes, only applies to claims seeking to compel the government to provide individuals with a particular platform for expression (Toronto (City) at paras 148, 150). Here, by contrast, the claimants sought freedom from government interference with the ward structure in place when the municipal election campaign began (Toronto (City) at para 151). Thus, she applied the framework from Irwin Toy Ltd. v Quebec (Attorney General), [1989] 1 SCR 927, 1989 CanLII 87 (SCC) (Toronto (City) at paras 151, 156-157).
According to the Irwin Toy framework, a law or government action infringes s. 2(b) if its purpose or effect is to interfere with expressive activity (Toronto (City) at para 156). Abella J concluded that the timing of the Act had the effect of interfering with expressive activity because it “breathed instability” into the municipal election, undermining the ability of candidates and voters to engage in “meaningful reciprocal political discourse” (Toronto (City) at paras 147, 157). She further concluded that Ontario failed to justify the timing of the Act under s. 1 of the Charter because Ontario provided no explanation – let alone a pressing and substantial one – for why the municipal ward structure needed to be changed during an ongoing election (Toronto (City) at para 161).
In obiter, Abella J held that unwritten constitutional principles may provide independent bases for invalidating legislation under s. 52(1) of the Constitution Act, 1982 (Toronto (City) at para 170). Unwritten constitutional principles, she explained, provide the most basic normative commitments of our constitution. The textual provisions of the constitution emanate from these principles, but do not exhaust them (Toronto (City) at para 168).
Discussion
The Doré Framework
Doré v Barreau du Québec, 2012 SCC 12 (CanLII) is the leading Supreme Court judgment on judicial review of administrative decisions that allegedly infringe a Charter right. The case concerned whether the decision of a disciplinary council to reprimand a lawyer for writing a private letter to a judge criticizing him was ultra vires the council – in other words, was invalid for being outside the council’s statutory authority – because it infringed the lawyer’s right to freedom of expression under s. 2(b) of the Charter.
Writing for a unanimous Court, Abella J held that a reasonableness standard of review applies when judicially reviewing administrative decisions that allegedly infringe a Charter right (Doré at para 45). An impugned administrative decision would be reasonable, and therefore constitutional, if and only if it reflects a proportionate balancing of the applicable Charter values with the relevant statutory objectives in the circumstances of the case (Doré at paras 7, 55-56). Applying this standard, Abella J held that the disciplinary council’s decision to reprimand the lawyer was constitutional. Given the letter’s “excessive degree of vituperation”, the decision was a reasonable exercise of the council’s statutory discretion, which proportionately balanced the lawyer’s right to freedom of expression with the council’s objective of ensuring civility in the legal profession (Doré at para 71).
The Significance of Toronto (City) for Administrative Law
Toronto (City) matters for administrative law because Charter values likely are themselves unwritten constitutional principles or derive from such principles [1]. Since Toronto (City) holds that unwritten constitutional principles cannot be independent bases for invalidating legislation under s. 52(1) of the Constitution Act, 1982, there is an open question whether and how courts can appeal to Charter values under the Doré framework to invalidate administrative decisions that unjustifiably infringe a Charter right.
Two ways to interpret the relationship between Toronto (City) and the Doré framework merit consideration. The first is to hold that Toronto (City) does not affect the Doré framework. Unwritten constitutional principles, as Charter values or the source of Charter values, may provide independent bases for invalidating administrative decisions that allegedly infringe a Charter right even though these principles do not provide independent bases for invaliding legislation under s. 52(1) of the Constitution Act, 1982.
On this interpretation, the view of unwritten constitutional principles the Court affirms in Toronto (City) only applies in the context of invalidating legislation under s. 52(1) of the Constitution Act, 1982. A discretionary administrative decision that is unreasonable because it fails to balance applicable Charter values with the relevant statutory objectives proportionately is not invalid under s. 52(1) of the Constitution Act, 1982. Since administrative decisions concern a particular individual or a particular set of circumstances, and are not policies of general application, they do not come within the ambit of s. 52(1) [2]. Therefore, unwritten constitutional principles may continue to play an independent role in judicial review of administrative decisions that allegedly infringe a Charter right.
This interpretation of the relationship between Toronto (City) and the Doré framework is likely untenable. This is because, in Toronto (City), the Court did not simply hold that unwritten constitutional principles cannot be independent bases for invalidating legislation. The Court also outlined the only two ways in which unwritten constitutional principles may be used: (a) to interpret constitutional provisions purposively or (b) to develop unwritten structural doctrines that are necessary to the coherence of, and which flow by implication of, the constitution’s architecture (Toronto (City) at paras 54-56). Now, when judges appeal to Charter values under the Doré framework, they do not use Charter values to interpret constitutional provisions purposively or to develop unwritten structural doctrines. Rather, they appeal to Charter values directly to constrain administrative discretion. Thus, the view of unwritten constitutional principles the Court articulates in Toronto (City) is inconsistent with the prevailing understanding of judicial review under the Doré framework.
The second (and more plausible) interpretation of the relationship between Toronto (City) and the Doré framework is that Toronto (City) modifies the Doré framework. Following Toronto (City), judges cannot appeal directly to Charter values when reviewing administrative decisions that allegedly infringe a Charter right: they cannot assess whether an administrative decision-maker has proportionately balanced the applicable Charter value with the relevant statutory objective. Doing so would amount to using unwritten constitutional principles for more than interpreting constitutional provisions purposively or developing structural doctrines. Rather, when reviewing administrative decisions, judges can only use Charter values as interpretive aids to determine the constraints the Charter right imposed on the administrative decision-maker in the circumstances of the case. An impugned administrative decision would be reasonable, and therefore constitutional, if and only if it reflects a proportionate balancing of the applicable Charter right – not the Charter value – with the relevant statutory objective in the specific factual context.
This modification to the Doré framework is theoretically significant. However, the practical consequences of this modification remain unclear because the extent to which courts may interpret the meaning of the applicable Charter right in light of Charter values is uncertain.
In Toronto (City), the Supreme Court explained that a court may use unwritten constitutional principles as interpretive aids when – and, the context of this explanation implies, only when – the constitutional text is not itself sufficiently definitive or comprehensive to provide an answer to a constitutional question (Toronto (City) at para 65). At first glance, this implies that courts would rarely be able to use Charter values – which likely are themselves unwritten constitutional principles or which stem from these principles – to interpret Charter rights. However, two reasons make this conclusion doubtful.
First, the text of constitutional provisions, including that of Charter rights, rarely fully determines how a case should be decided: what constitutional provisions mean or require in specific circumstances is often subject to interpretation. Second, in Toronto (City), the Court did not specify how courts should decide whether the constitutional text is sufficiently definitive or comprehensive to provide an answer to a constitutional question. However, the Court’s comments suggest that courts should decide whether the text of a constitutional provision is sufficiently definitive or comprehensive with reference to the purpose of that provision, appealing, where necessary, to unwritten constitutional principles to identify the provision’s purpose (Toronto (City) at para 65).
For these reasons, courts may often (if not always) be able to interpret a Charter right by appealing to Charter values, such that Charter values may continue to play a substantive role in the balancing exercise conducted under the Doré framework. Even so, two points are noteworthy: (a) the Charter values will have legal force through the Charter rights (by specifying the meaning of the rights) and (b) only those Charter values which are consistent with the text of the Charter rights would have such legal force.
[1] See Lorne Sossin and Mark Friedman, “Charter Values and Administrative Justice,” (2014) 67 SCLR (2d) 391-430 at paras 408.
[2] See Greater Vancouver Transportation Authority v Canadian Federation of Students - British Columbia Component, 2009 SCC 31 at paras 87-90.