City of Toronto v Ontario: The Gap in Constitutional Protection for Municipal Elections

Spence Colburn, 3L, Volume 78 Editor-in-Chief

Image by Twurdemann (Flickr)

The Ontario Court of Appeal’s decision in Toronto (City) v Ontario (AG), 2019 ONCA 732 (“Toronto v Ontario”) is the latest development in a challenge to the Better Local Government Act, 2018, SO 2018 C-11 (“Bill 5” or “the BLGA”) that is currently under consideration for appeal to the Supreme Court of Canada. A 3-2 majority of the Court of Appeal held that provincial legislation halving the number of electoral wards midway through Toronto’s 2018 municipal election did not violate the s. 2(b) Charter rights of electoral participants.  

Background

The election period for Toronto City Council began on May 1, 2018, based on a 47-ward structure. [1] The ward structure was the product of an extensive independent consultation process called the Toronto Ward Boundary Review (“TWBR”). [2] On July 30, 2018, three months after the election period commenced, the newly-elected Ford government announced it would be introducing provincial legislation, Bill 5, that would cut the number of wards and Councillors in Toronto from 47 to 25, effectively doubling the average ward population and size.

The Better Local Government Act came into force on August 14, 2018, nearly two-thirds of the way through the election period. At this point, 509 candidates had been certified and were in the midst of campaigns based around the 47-ward election. [3]

Ontario Superior Court of Justice

Amidst public outrage, various applicants, and intervenors in support, launched an urgent challenge to the constitutionality of the BLGA in the Ontario Superior Court of Justice. [4] On September 10, 2018, the application judge, Belobaba J declared the relevant provisions of Bill 5 to be unconstitutional, finding that they unjustifiably violated the s. 2(b) freedom of expression rights of both municipal candidates and voters (City of Toronto et al v Ontario (Attorney General), 2018 ONSC 5151).

In his s. 2(b) analysis, Belobaba J controversially interpreted freedom of expression to include a right to “cast a vote that can result in effective representation.” [5] Effective representation has been defined as the purpose of the right to vote under s. 3 of the Charter—a provision that applies only to provincial and federal elections. Municipal elections have no separate constitutional status: they are within provincial powers under s. 92(8) of the Constitution Act, 1867.  

Belobaba J went on to find that a 25-ward structure violated s. 2(b) because it could not achieve effective representation, relying on the TWBR’s conclusion that wards so large would render Councillors incapable of responding to the grievances and concerns of their constituents. [6] He struck down the relevant provisions of the BLGA and ordered the election to proceed on the basis of 47 wards. The Ford Government promptly announced its intention to invoke s. 33, the notwithstanding clause, to override Belobaba J’s decision, sparking further media fire, but later abandoned this idea upon successful application to the Ontario Court of Appeal for a stay.

Ontario Court of Appeal

Belobaba J’s decision was contentious within the legal community, particularly due to his perceived conflation of ss. 3 and 2(b). [7] On September 19, 2018, the Ontario Court of Appeal granted a stay of the application judge’s decision, placing considerable weight on the likelihood that an appeal on the merits would succeed (Toronto (City) v Ontario (Attorney General), 2018 ONCA 761). [8] The stay allowed the election to proceed on the basis of 25 wards.

Following the election, the Attorney General of Ontario appealed Belobaba J’s decision. The only remaining respondent was the City of Toronto. On September 19, 2019, a newly-constituted five-member panel of the Ontario Court of Appeal reversed the application judgment. [9]

Writing for a narrow 3-2 majority, Miller J held that Ontario’s introduction of Bill 5 midway through the municipal election was both constitutional and “undeniably within the legitimate authority of the legislature.” [10] Specifically, he held that Belobaba J misinterpreted s. 2(b) in two ways. First, by interpreting s. 2(b) to include a guarantee that government action will not diminish the effectiveness of anyone’s expression, Belobaba J inappropriately stretched the scope of s. 2(b) beyond its purpose. Second, by subsuming s. 3—the right to vote—within s. 2(b)’s guarantee, he conflated two distinct Charter rights, applying s. 3’s protections to municipal elections in defiance of the textual limits of the provision. [11]    

The majority reasoned that, at most, the BLGA reduced the value of past expression and the effectiveness or impact of future expression, neither of which are protected by s. 2(b). Because candidates remained free to express themselves “as they saw fit” after Bill 5 was introduced, Miller J found that their exclusion from a 47-ward election did not interfere with their expressive freedom. [12]

Miller J further held that the application judge inappropriately conflated ss. 2(b) and 3 of the Charter by using s. 3’s standard, effective representation, to conclude that the expressive freedom of municipal voters had been violated. Because s. 3 does not apply to local governance, its content cannot be imported into s. 2(b) “to circumvent the decision of the constitutional framer not to extend the protection of s. 3 to municipal elections.” [13] It is not, he reasoned, as though municipal governance and local elections were unforeseen by the drafters. Absent amendment, judges must respect the choice to exclude municipal elections from constitutional protection. [14]

Macpherson and Nordheimer JJ, dissenting, would have invalidated the BLGA on the basis that its introduction in the middle of the election unjustifiably violated municipal candidates’ freedom of expression. [15] Macpherson J criticized the majority for framing the s. 2(b) question too narrowly, in a manner that undermined the nature and importance of electoral expression. [16] He would have interpreted s. 2(b) to include a right of electoral participants to freedom of expression “within the terms of an election once that election has commenced.” [17]

The minority took a contextual approach, recognizing that campaign expression cannot be divorced from the fundamental rules of an election, like ward boundaries and campaign finance regulations. Based on these terms, candidates decide “where to run, what to say, and how to publicize their views.” [18] A purposive interpretation of s. 2(b) in this context strives to achieve genuine democratic deliberation, which depends upon the terms of an election remaining stable throughout the election period. [19]

 The minority would have upheld Belobaba J’s holding that Ontario’s midstream introduction of Bill 5 substantially interfered with the expressive freedom of candidates, by considering the impacts cumulatively. The Act had the effect of violating freedom of expression in several ways: by diminishing the value of past expression based upon a 47-ward election; by causing widespread confusion and uncertainty; and by restricting the ability of electoral participants to express themselves within the established terms of an active election. [20]

Interference with Local Democracy and the Charter: A Question for the Supreme Court of Canada

The importance of Toronto v Ontario lies in the precedent that it sets for future interferences with local democratic processes. Toronto has sought leave to appeal to the Supreme Court of Canada and guidance is necessary from the highest Court to settle the constitutional question of s. 2(b)’s scope in a municipal election. The outcome will depend entirely upon the Court’s interpretive approach to s. 2(b). 

S. 2(b): Narrow vs. Purposive

Whether the Court holds that municipal candidates’ freedom of expression was breached will depend upon whether it takes a contextual and purposive approach to s. 2(b), as opposed to one that is rigid and mechanical.  

The Court of Appeal’s majority judgment relies on fine technical distinctions that carve out the scope of s. 2(b) as protecting only a thin vision of freedom of expression (for example, past expression vs. future expression and effectiveness of expression vs. ability to express oneself). [21] Such a narrowing approach does not accord with the broad nature of s. 2(b)’s guarantee, [22] nor with the utmost importance of political expression to s. 2(b), especially within an active election. [23]

The minority’s purposive and contextual approach is preferable. As the minority recognizes, political expression in the campaign context must be afforded the strictest protection under s. 2(b), given that democracy is the “linchpin” of the guarantee. [24] Accordingly, for s. 2(b)’s protection to accord with its purpose, electoral expression must be considered in light of what is required to facilitate genuine democratic deliberation. 

A meaningful conception of expression in this context recognizes that campaign expression is dependent upon mass communication and finite resources. [25] Past communication, then, must be relevant, because it impacts the ability of candidates to communicate for the remainder of the election period. By the time the Act came into force, many candidates had spent a considerable amount of their campaign funds on leaflets, brochures and signs that were now useless given the ward changes. If candidates had spent 70% of their campaign resources when the Act came into force, they now held 30% of the expressive capacity that they did originally with which to conduct an entirely new campaign in one-third of the time.  

Moreover, campaign expression cannot be considered in isolation from the ward-specific nature of the issues and concerns that it reflects. A fundamental change to electoral wards midway through the election impinges on the ability of candidates and electors to engage in genuine democratic deliberation—this violates s. 2(b). 

The Interaction of ss. 2(b) and 3

The claim on behalf of municipal voters will rest upon the Court’s view of the interaction between s. 2(b) and the doctrinal tools of s. 3—a question that all judges of the Ontario Court of Appeal took as settled.   

Belobaba J supported his consideration of the concept of effective representation under s. 2(b) partly on the basis of East York v Ontario (AG)—a 1997 challenge to Ontario’s amalgamation of the six constituent cities of the Metro-Toronto area into one mega-city, the GTA. [26] In its rather terse judgment in East York, a unanimous Ontario Court of Appeal considered in obiter whether the ratio between constituents and municipal representatives post-amalgamation respected the “right to effective representation” under s. 2(b). Ultimately, the court concluded there had been no s. 2(b) breach due to the lack of an evidentiary record showing that the new municipal structure would “reduce democratic access to…municipal decision-making.” [27]

In both the stay and appeal decision of Toronto v Ontario, the Ontario Court of Appeal ignored East York, relying instead on the more recent cases of Thomson Newspapers v Canada (AG), [1998] 1 SCR 877 and Harper v Canada (AG), 2004 SCC 33 where the Supreme Court appears to reject the conflation of ss. 3 and 2(b). In the latter cases, the Court addressed situations where both ss. 2(b) and 3 were engaged. Due to the potential for overlap between the two provisions, the Court held that the proper approach is to keep the analyses distinct. [28]

The Ontario Court of Appeal cited Thomson Newspapers and Harper for the broad proposition that standards developed under s. 3 can never be used to interpret s. 2(b). However, the two cases are not as clear on this point as the court indicates and both address concerns not present in Toronto v Ontario. 

For instance, where both ss. 2(b) and 3 are engaged in a given case, it is of course logical to engage in distinct analyses. But in such a context, a Charter analysis of electoral expression does not suffer from that separation, since a court still has recourse to both rights, albeit distinctly. Also, in Thomson Newspapers and Harper, the Court’s expressed concern about mixing ss. 2(b) and 3 stems generally from the fact that s. 3 is one of the few rights not subject to the government’s override power in s. 33. [29] The Court is wary of broadening the scope of a right whose judicial interpretation and application can only be overridden by constitutional amendment. But in neither case does the Court foreclose the reverse interaction of these two rights—namely, using s. 3’s norms to interpret the broader scope of s. 2(b). 

Where the Supreme Court has considered the interaction of ss. 2(b) and 3 where the latter does not apply (outside of a provincial or federal election), the Court has confirmed that there exists no positive constitutional right to vote in a referendum [30] or a plebiscite, [31] or to seek election for school trusteeship. [32] However, the Court has also made clear that, where s. 3 does not apply to a particular context, the mere fact that a claim could otherwise be advanced under s. 3 cannot be used to foreclose its consideration under s. 2(b). [33] The Court has also added a caveat, relied upon by Belobaba J: where a government chooses to extend a right to vote, it must do so in conformity with other sections of the Charter, like freedom of expression. [34]

The question posed by Toronto v Ontario and left unanswered by existing Supreme Court jurisprudence is: can electoral expression be meaningfully considered without the democratic norms of s. 3? 

The Charter affords such a high degree of protection to political speech precisely for its potential to influence electoral outcomes and democratic governance. As the minority recognizes, a purposive interpretation of s. 2(b)’s scope in the electoral context mandates that the guarantee contemplates the conditions required for genuine democratic deliberation. Unfortunately, those conditions have been largely developed under s. 3.

For example, s. 3 incorporates the right of voters to make a free and informed choice and the right of candidates to be given a reasonable opportunity to present their positions (meaningful participation). [35] Post-election, s. 3 protects the capacity of citizens to make their grievances and concerns known to their elected representatives (effective representation). [36] 

These analytical tools are both intrinsically expressive and the measures of genuine democratic deliberation, a reality that reflects the inextricable link between political speech and democratic elections. Just as the electoral process needs robust political debate to foster wise decision-making, the free marketplace of ideas requires reliable elections through which citizens can present platforms, become informed of their choices, and translate their views into government action. [37]

In fact, the Supreme Court has expressly acknowledged the relevance of election principles to political expression under s. 2(b). In Haig v Canada (AG), [1993] 2 SCR 995 despite holding that s. 3 did not confer a positive right to vote in a referendum, Cory J refused to accept that “the generous principles applicable to the right to vote in elections should not apply with the same force to a referendum.” [38] In the minds of Canadians, he reasoned, a referendum is every bit as important as an election and the similarities between the two systems are such that the same principles should apply in either case. Cory J’s comments were picked up in Libman v Quebec (AG), [1997] 3 SCR 569, again considering a referendum under s. 2(b), wherein the Court developed the notion of “a free and informed choice” as one relevant measure of a right to vote. [39] Though developed under s. 2(b), Libman’s notion of a free and informed choice was then adopted by the Court in Harper as “the informational component” of the right to meaningfully participate in the electoral process under s. 3. [40]

To follow the Ontario Court of Appeal’s approach would be to use one Charter right to carve out content from the purposive interpretation of another. Perhaps this is an acceptable division in a case where both rights will ultimately be considered. But where s. 3 does not apply, the impact of withholding its jurisprudential tools is to deny political expression full and proper consideration under the Charter.

The Supreme Court would do better to reaffirm that the same Charter principles may be relevant to the interpretation of multiple closely-related Charter rights. For example, ss. 8-14 of the Charter are “instances of the principles of fundamental justice” protected by s. 7. [41] Accordingly, the Court has considered a reasonable expectation of privacy—a concept developed under s. 8—to be relevant to the interpretation of s. 7. [42] The Court has also held that ss. 7 and 11(d) (the right to a fair trial) are “inextricably intertwined” and together protect a right to full answer and defence. [43]

In the electoral context, the undeniable link between ss. 2(b) and 3 is such that the two serve a common purpose and depend upon one another. [44] Together, the provisions protect a right to genuine democratic deliberation. Voting and campaigning are instantiations of political speech closely guarded by s. 2(b). Under s. 3, the Court has purposively developed, in a specific manner and setting, the core of the guarantee of expressive freedom, in light of the democratic conditions required to translate political views into government action. Given the nature of this connection, “[i]t would be incongruous to interpret” s. 2(b) more narrowly than s. 3. [45]

An interpretation of s. 2(b) that allows for consideration of s. 3’s norms when evaluating electoral expression would neither extend a positive right to vote and run in a municipal election, nor would it constitutionalize a third level of government. Instead, it would set a logical precedent: where the government chooses to extend the right to participate in an election, it cannot then substantially interfere with the constitutional conditions required for genuine democratic deliberation. 

Conclusion: Municipal Governance—A Constitutional Hole

Which interpretation of s. 2(b) will stand up to scrutiny in the Supreme Court of Canada remains to be seen. In particular, Abella and Moldaver JJ, who sat on the panel of the Ontario Court of Appeal in East York, will have an opportunity to revisit their dictum from that case and attempt to distinguish Thomson Newspapers and Harper. If the Court agrees with the majority of the Ontario Court of Appeal, provincial interference with local elections will have effectively been judicially sanctioned—an outcome that does not bode well for the future of local democracy. 

 But while the Court will have the opportunity to consider the proper interpretation of s. 2(b), the appeal will not address the deeper question raised by Toronto v Ontario–how can it be that any election in Canada is excluded from the Charter’s democratic protections? 

The constitutional status of municipalities is not a new issue. In 1978, Prime Minister Trudeau wrote to the Federation of Canadian Municipalities agreeing to consider recognizing the municipality as a third level of government in the Charter. But, following fierce provincial opposition, the constitutional recognition of the municipality became a dead issue and municipal governance was excluded from the Charter’s three democratic rights provisions (ss. 3-5). Indeed, in the last 50 years, whenever the issue has been raised, the provinces have unsurprisingly demonstrated a propensity to “jealously guard the constitutional arrangements that give them exclusive control over their municipalities.” [46]

The constitutional status quo reflects a distressing reality showcased by Toronto v Ontario. As Professor Colin Feasby highlights, lack of recourse to s. 3 in the municipal context can sanction democratic process violations, unless complainants can make out a breach of another Charter right, like freedom of expression or equality. [47] If a separate breach cannot be established, Canadian lawmakers can effectively hold out democratic structures that need not conform to democratic standards. Government interference with local elections reflects poorly upon the health of Canada’s democracy as a whole, and a lack of judicial recourse for such interferences may erode the perceived legitimacy of our constitutional democracy. 

Judges cannot legitimately extend the Charter’s protections simply to address inequity. As the majority put it, “the Constitution does not work that way. No constitution does.” [48] But the Charter exists precisely to place a check on majority tyranny. Charter rights may trench on provincial jurisdiction over municipal elections if such an encroachment can be supported by a legitimate interpretation of those provisions. In Toronto v Ontario, the question is whether s. 2(b) is an appropriate vehicle. 

Notes

[1] City of Toronto et al v Ontario (Attorney General), 2018 ONSC 5151 at para 4.

[2] Toronto Ward Boundary Review: Final Report (Toronto: Toronto City Council, 2016).

[3] City of Toronto et al v Ontario (Attorney General), 2018 ONSC 5151 at para 5.

[4] Among the applicants and intervenors were the City of Toronto, two candidates, two electors and a municipal electoral interest group: see City of Toronto et al v Ontario (Attorney General) (20 August 2018), Toronto, ONSC CV-18-00603633-0000 (notice of application).

[5] City of Toronto et al v Ontario (Attorney General), 2018 ONSC 5151 at para 47.

[6] City of Toronto et al v Ontario (Attorney General), 2018 ONSC 5151 at para 58. See Reference re Provincial Electoral Boundaries (Sask), [1991] 2 SCR 158  at 183, (where the Supreme Court held that effective representation includes “the right to bring one’s grievances and concerns to the attention of one’s government representative.”)

[7] See e.g. Mark Mancini, “Toronto v Ontario: A Remedy Seeking a Right” (11 September 2018), Double Aspect (blog); Leonid Sirota, “It Doesn’t Work That Way” (17 September, 2018), Double Aspect (blog).

[8] Toronto (City) v Ontario (Attorney General), 2018 ONCA 761.

[9] Toronto (City) v Ontario (Attorney General), 2019 ONCA 732.

[10] Toronto (City) v Ontario (Attorney General), 2019 ONCA 732 at para 6.

[11] Toronto (City) v Ontario (Attorney General), 2019 ONCA 732 at para 34. 

[12] Toronto (City) v Ontario (Attorney General), 2019 ONCA 732 at para 64.

[13] Toronto (City) v Ontario (Attorney General), 2019 ONCA 732 at para 74.

[14] Toronto (City) v Ontario (Attorney General), 2019 ONCA 732 at para 95.

[15] Toronto (City) v Ontario (Attorney General), 2019 ONCA 732 at para 99.

[16] Toronto (City) v Ontario (Attorney General), 2019 ONCA 732 at para 118. 

[17] Toronto (City) v Ontario (Attorney General), 2019 ONCA 732 at para 123.

[18] Toronto (City) v Ontario (Attorney General), 2019 ONCA 732 at paras 121-122.

[19] Toronto (City) v Ontario (Attorney General), 2019 ONCA 732 at para 123.

[20] Toronto (City) v Ontario (Attorney General), 2019 ONCA 732 at para 128.

[21] The majority also frames the analysis as a positive rights claim, despite the fact it was argued as a claim for freedom from government interference. A full discussion of this aspect of the judgment is beyond the scope of this post, but it suffices to say that the distinction only confuses and distracts from the issue at hand. As mentioned, the City’s claim was not argued as one for positive access to a statutory platform. It is unsurprising, then, that it does not fit cleanly within a positive rights framework, as does, say, the preclusion of teachers from running in a school board election: see Baier v Alberta, 2007 SCC 31. Importantly though, a claim of a s. 2(b) violation should not stand or fall on such a slippery distinction as whether the government “interfered with the fundamental terms of an ongoing election” or merely “removed a 47-ward election and substituted it with a 25-ward election.”

[22] Libman c. Québec (Procureur général), [1997] 3 SCR 569 at para 31, Thomson Newspapers Co v Canada (AG), [1998] 1 SCR 877 at para 81.

[23] “Political speech is the single most important and protected type of expression. It lies at the core of the guarantee of free expression.” Harper v Canada, 2004 SCC 33 at para 11, McLachlin CJC (dissenting, but not on this point).

[24] Freedom of expression is valued, above all, as being essential to legitimate democratic governance. The Supreme Court of Canada has consistently described the connection between expressive freedom and the political process as the “linchpin” of the s. 2(b) guarantee. See R v Keegstra, [1990] 3 SCR 697; Thomson Newspapers, [1998] 1 SCR 877; Harper v Canada, 2004 SCC 33.

[25] See Harper v Canada, 2004 SCC 33 at para 20, McLachlin CJC, dissenting, but not on this point. “In our modern democracy, we cannot speak personally with our co-citizens. We can convey our message only through methods of mass communication.”

[26] East York v Ontario (Attorney General), [1997] OJ No 4100.

[27] East York v Ontario (Attorney General), [1997] OJ No 4100, 153 DLR (4th) 299 at para 8.

[28] Thomson Newspapers, [1998] 1 SCR 877; Harper v Canada, 2004 SCC 33.

[29] See e.g. Thomson Newspapers, [1998] 1 SCR 877 at para 79.

[30] Haig v Canada (Attorney General), [1993] 2 SCR 995.

[31] Siemens v Manitoba, 2003 SCC 3.

[32] Baier v Alberta, 2007 SCC 31 at para 57.

[33] Baier v Alberta, 2007 SCC 31 at para 59.

[34] Haig v Canada (Attorney General), [1993] 2 SCR 995 at 1065.

[35] Figueroa v Canada (Attorney General), [2003] 1 SCR 912 at para 29.

[36] Reference re Provincial Electoral Boundaries (Sask), [1991] 2 SCR 158 at 183.

[37] Daniel I Weiner & Benjamin T Brickner, "Electoral Integrity in Campaign Finance Law" (2017) 20:1 New York U J of Legislation & Public Policy 101 at 107-108.

[38] Haig v Canada (Attorney General), [1993] 2 SCR 995 at 1050.

[39] Libman v Quebec (Attorney General), [1997] 3 SCR 569 at paras 46-47.

[40] Harper v Canada (Attorney General), 2004 SCC 33 at para 71

[41] Re BC Motor Vehicle Act, [1985] 2 SCR 486 at 502.

[42] R v Beare, [1988] 2 SCR 387 at para 58.

[43] R v Seaboyer, [1991] 2 SCR 577 at 603.

[44] Thomson Newspapers, [1998] 1 SCR 877 at para 82. The Court recognized the link between information and expression with the ability to participate in the electoral process and alluded to the fact that s. 3 likely has an informational component.

[45] Re BC Motor Vehicle Act, [1985] 2 SCR 486 at 502.

[46] House of Commons, Parliamentary Information and Research Service, Municipalities, The Constitution, and the Canadian Federal System (Revised May 2006) at 1.

[47] Colin Feasby, “City of Toronto v Ontario and Fixing the Problem with Section 3 of the Charter” (28 September, 2018), ABlawg. Feasby suggests that the Supreme Court should address the real problem: the scope of s. 3. He argues for the adoption of a rule which would extend s. 3 to situations where the federal or provincial government has chosen to delegate a legislative role to a democratically-elected body or a decision to the electorate in a referendum. The idea behind such a rule is that a body elected in processes which are subject to s. 3 cannot delegate its power away to another elected body with lesser constitutional protections.

[48] Toronto (City) v Ontario (Attorney General), 2019 ONCA 732 at para 77.