Court of Appeal Finds No Expression Interests in Bill 5

Toronto might be the megalith of cities when it comes to Canada’s metropolis, but it has no constitutional authority to oppose the province’s interference with municipal elections. That is the invariable conclusion arising out of the Ontario Court of Appeal’s decision this week.

The split 3-2 decision largely focused on two main issues. The first, whether unwritten constitutional principles could provide a basis to resist provincial modifications of the election, was unanimously decided by the court. The dissent only differed from the majority on the applicability of s. 2(b) rights in the circumstances of an ongoing election.

The majority was indirectly highly critical of the initial decision rendered in this matter, acknowledging that although the substantial changes disrupted campaigning and the expectation of candidates, the role of the court was not to render these actions good or bad policy, or determine whether it was fair. Instead, the sole analysis was the constitutionality of these actions.

The City of Toronto relied extensively on these unwritten constitutional principles, arguing that although the unwritten principle of democracy has been acknowledged by the Supreme Court of Canada in Quebec Secession Reference at para 49, the full scope of this principle has yet to be judicially interpreted. Where the province has established a democratic election for a municipality under a provincial statute, it must respect democratic principles when modifying or interfering with the provisions in that same statute.

These democratic principles included the right to effective representation, conducting elections without undue state interference, full participation in the electoral process, the right to run for office, the right to vote, the right to play a meaningful role in the selection of elected representatives, a meaningful participation in the electoral process, and for citizens to have an informed vote.

The Federation of Canadian Municipalities took a similar position, stating that the unwritten constitutional principles were necessary to give life to the living tree of the constitution.

The majority at the Court of Appeal rejected this position entirely, insisting instead on the primacy of our written constitution. They referred to the City’s description of unwritten principles as amorphous and ambiguous, which would allow courts to engage in judicial governance if not properly constrained. Section 92 of the BNA Act is a source of lawmaking authority, but does not regulate any acts of law related to municipal government or constitutionalize any particular form under s. 92(8).

There is no legislative gave that unwritten principles would be filling here, and doing so would create an entirely different problem identified by the court,

[88] …were a court to invoke unwritten constitutional principles to invalidate legislation, the consequences of judicial error – always a possibility – would be virtually irremediable. Where a court invalidates legislation using s. 2(b) of the Charter, s. 33 is available to enable the legislature to give effect to its disagreement with a court’s interpretation or application of that right. Were a court instead to invoke unwritten constitutional principles, constitutional amendment – by design, something that is extremely difficult to achieve – would be the only option available.

[89] In short, unwritten constitutional principles do not invest the judiciary with a free-standing power to invalidate legislation. They cannot be invoked to invalidate the Act.

The dissent did not comment on this analysis, and focused on the singular issue of expression rights under the Charter. The majority identified two errors in the initial decision around these rights,

[39] First, the application judge’s analysis expanded the purpose of s. 2(b) from a guarantee of freedom from government interference with expression to a guarantee that government action would not impact the effectiveness of that expression in achieving its intended purpose.

[40] Second, the application judge conflated the concepts of positive and negative rights, failed to consider the framework for analysing a positive rights claim, and thereby impermissibly extended the scope s. 2(b).

The majority acknowledged that the issue with the changes to Toronto’s city council was not about its composition, but in the timing of the legislative changes. They claimed the impact of the changes would be regardless, whether it was made during or after the election.

They noted that s. 2(b) is intended to prevent interference by government with expression, and not take any positive steps to provide a platform for expression absent exceptional circumstances. Citing the Supreme Court of Canada in Baier v. Alberta, they said that a claim to restore a specific platform, namely to restore expression along the lines of the existing ward boundaries, was a positive claim. There was no substantial interference from exercising the freedom of expression, as the government allowed candidates to continue to say whatever they wanted to politically.

The dissent rejected this analysis, and distinguished the case from Baier,

[130] Baier involved a challenge to legislation that blocked teachers from running in school board elections. The teachers argued that the legislation restricted their candidacy in violation of their s. 2(b) rights. Alberta responded that s. 2(b) did not guarantee candidacy rights in a school board election to any particular class of persons, and was therefore not infringed: at paras. 43-44, 47.

[132] In my view, this appeal is distinguishable from Baier in three major respects:

1) Baier addressed the constitutionality of excluding a class of people from running in an election. The issue in this case is not about exclusion from an electoral platform. Rather, it is about the mid-stream destruction of that platform, its replacement with something new, and the impact of that change on the free expression rights of all electoral participants.

2) Baier was adjudicated as a positive rights claim. In resisting legislation that blocked their candidacy, the teachers asserted a constitutional entitlement to run in school board elections. No such positive right is claimed here. The City’s plea is for non-interference in an election that had already begun. Accordingly, my conclusion that the Act infringed s. 2(b) turns on the timing of the changes it imposed, not on the changes themselves.

3) In Baier, the legislation that blocked teachers from running in school board electionswas enacted in 2002: School Trustee Statutes Amendment Act, 2002, S.A. 2002, c. 23, s. 1(2)(a). The school board elections themselves were scheduled for the autumn of 2004. The legislation therefore did not interfere in any active elections. In this case, the Act was enacted midway through the Toronto municipal election, more than three months after the opening of the nomination period.

The dissent disagreed with the majority’s characterization of the expression interests on four different basis:

  1. there was insufficient weight on the timing of the Act, which changed the entire landscape of the election 2/3 of the way through
  2. characterizing the expression as past communication was too narrow, as it did not consider the effect on mid-stream elections
  3. they rejected that the initial decision expended s. 2(b) into an effectiveness analysis, as the terms of the election was also the basis for which candidates entered the race
  4. a purposive interpretation of s. 2(b) applied to the ideal of open communications, substantially interfered with the expression rights of all electoral participants

Part of the reason for the flaws in the majority decision is the lack of any of the municipal candidates in the continued proceedings. As a preliminary matter, the majority addressed the issue of the City proceeding on their behalf, as none of them continued with the litigation beyond the initial appeal.

The majority characterized this situation as the original applicants as “settling,” making assumptions that the interests of candidates seeking recourse in the initial application as being moot. The reality is that litigation is enormously time consuming and often expensive, especially for public interest litigants that have already expended considerably resources in an unsuccessful and sabotaged political campaign.

As a result, the record and submissions of theses parties of the impact of the legislative changes was not immediately before the court. While the City made general submissions in this regard, the initial application made specific examples to financial implications, personal decisions, and very real challenges with being forced to discuss the legislative changes during the election with voters instead of being able to express their political rights.

There is a difference between discarding statutory provisions regarding mutual consultation of ridings and the number of council seats, as found in the Toronto-Ontario Cooperation and Consultation Agreement alluded to in s. 1(3) of the City of Toronto Act, and a claim of positive rights or effective expression. The manner in which a competent legislative body amends these provisions when they are actively being relied upon by residents is an important context for evaluating the s. 2(b) expression interests.

The dissent relied on this agreement between Toronto and the province, the fact that the province singularly targeted Toronto, and that they did so in the middle of the election, to illustrate the particularly unique nature of this case, concluding,

[136] The 2018 Toronto municipal election concluded on October 22, 2018 with the election of a 25-member City Council. Yet the actions taken by Ontario to secure that result left a trail of devastation of basic democratic principles in its wake. By extinguishing almost half of the city’s existing wards midway through an active election, Ontario blew up the efforts, aspirations and campaign materials of hundreds of aspiring candidates, and the reciprocal engagement of many informed voters. This infringement of s. 2(b) was extensive, profound, and seemingly without precedent in Canadian history.

[emphasis added]

Further review by the Supreme Court of Canada of this case would require approval by the City of Toronto Council, many of whose members benefited from these legislative changes. Let’s hope they proceed regardless, so that we can get further clarity on the extent to which a provincial government can interfere directly in the governance of municipalities.


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