The UK Supreme Court’s decision in R (on the application of Miller) v. The Prime Minister and Cherry and others v. Advocate General for Scotland surprised many because of the Court’s willingness to wade into the legitimacy of Prime Minister Boris Johnson’s prorogation of Parliament and to employ unwritten constitutional principles to do so. The City of Toronto raised unwritten constitutional principles in challenging the Better Local Government Act, 2018‘s reduction of Toronto City Council from 47 wards to 25; however, the Court of Appeal dismissed this approach in the City of Toronto case. Here I revisit that decision in light of the UK Supreme Court’s decision
In my last post but one, I summarized the UK Supreme Court’s decision finding Prime Minister Boris Johnson’s advice to prororogue Parliament for five weeks to be unconstitutional as contravening the unwritten principles of parliamentary sovereignty and parliamentary accountability or responsible government. Previously, I had suggested here that the Prime Minister’s motive was relevant. The UK Court held that it was not concerned with motive (UK decision, para. 58). Yet, it indirectly imputed an improper motive — or at least the possibility of one — by finding that he had no need of a lengthy prorogation.
Important though the UK Supreme Court’s decision is, its main points can be summarized briefly.
In fact, Parliament resumed the day after the decision had been released.
On its face, the UK decision bears little resemblance to the Ontario legislature’s enactment of the Better Local Government Act, 2018. In both cases, however, the impugned decision was, in the usual course, one clearly within the purview of the decision-maker, whether the Prime Minister’s right to prorogue Parliament or the provincial legislature’s right to enact legislation affecting municipal government.
Prior to the UK Supreme Court’s decision, most pundits, including many constitutional experts, believed the Court would not intervene in Prime Minister Johnson’s decision. In part, this was because much of the focus was on whether the Queen should have acceded to his advice to prorogate Parliament for five weeks (much as the focus was on whether the Governor-General should have accepted Prime Minister Stephen Harper’s advice to prorogue Parliament in 2008 in the face of an almost inevitable non-confidence vote). At least one expert, however, took the position that the Court had recourse to unwritten constitutional principles permitting it to review the prorogation. And, indeed, this is exactly the approach the Court applied.
In the Court of Appeal’s City of Toronto decision, Miller J.A., writing for the majority in allowing the province’s appeal from the application judge’s decision under the Canadian Charter of Rights and Freedoms and for the entire Court with regard to unwritten principles, accepted that unwritten constitutional principles “serve to guide judicial reasoning as well as the deliberations of the executive and legislative branches of government”, but dismissed unwritten principles as a means of finding legislation invalid: “the argument that the unwritten principles of democracy — or any other unwritten principle — can be used to inject a proviso into s. 92(8) of the Constitution Act, 1867 [the provincial power over “Municipal Institutions in the Province”] to prevent the legislature from enacting legislation altering the ward structure during an election must be rejected”. (para. 90)
Justice Miller describes the unwritten principles as “principles of political philosophy” akin to “principles of political morality”. He states that “their role in adjudication by the courts is easily misunderstood and often overstated, because of the tendency to conflate legal and political unconstitutionality” (para. 84). This labelling diminishes their impact within a legal paradigm. He contrasts them to “the rights enumerated in the Charter — rights whose textual formulations were debated, refined, and ultimately resolved by the committees and legislative assemblies entrusted with decision-making authority”, whereas “the concepts of democracy and rule of law have no canonical formulations”. Rather the latter are “complex and multifaceted” and “their constituent elements…can only be realized to a degre and often work at crosspurposes with each other”. (para. 85)
This assessment both overstates the settled nature of the meaning of Charter rights and understates the extent to which the jurisprudence has developed the parameters of the unwritten principles. Since 1982, the courts have had to pour meaning into the vessels of Charter rights, relying not only on the committee considerations, but also the history of these rights, their evolutionary development and their international treatment. The courts have interpreted the rights in the context as a whole and have recognized that in some cases, their application can lead to conflicting applications that must be reconciled (for example, in the application of equality rights or between equalty rights and freedom of religion). Perhaps most importantly, it fails to acknowledge that the Supreme Court of Canada has granted the unwritten principles status as “legal principles”.
However, Miller J.A.’s other objections to granting unwritten principles greater significance seems to lie in how he views the relationship between the legislature and the courts or, put another way, the role of the courts. Relying on Supreme Court of Canada jurisprudence, he emphasizes for judicial review to be legitimate courts must have “express textual authority” when limiting the power of legislatures (para. 87). Furthermore, if the court finds legislation unconstitutional under section 2(b) of the Charter, the legislature can invoke section 33 of the Charter (as, I note, the Ontario government threatened to do if it had not been granted a stay of the application judge’s decision). Of course, section 33 is not available for all Charter rights, although the government is always able to pass other legislation that is more likely to conform to the Charter. Thus Miller J.A. also overstates “the consequences of judicial error” as being “virtually irremediable” (para. 88).
While acknowledging that “unwritten unconstitutional principles can be used as an aid to resolve genuinely open questions of constitutional and statutory interpretation”, Miller J.A. states they cannot be used “to inject a proviso into s. 92(8) of the Constitution Act, 1867 to prevent the legislature from enacting legislation altering the ward structure during an election must be rejected”. (para. 91) Section 92(8) “is simply a general grant of lawmaking authority” and does not constitutionalize any particular form of municipal governance” (para. 94). It is also not necessary here to resort to unwritten constitutional principles to fill a “gap” by “identifying requirements that ‘flow by necessary implication’ from other terms of the Constitution” (citations omitted, para. 92). None of the other reasons for applying the principles are relevant (assigning federal or provincial jurisdiction a new subject matter or of a new social or political development) (para. 94).
The Supreme Court of Canada has found unwritten constitutional principles that, as Miller J.A. says, stem from other parts of the Constitution. These include the preamble to the Constitution Act, 1867 (“a Constitution similar in Principle to that of the United Kingdom”), at least by inference if not explicitly (see, for example, Quong Wing v. The King (1914); the federal nature of Canada (see the cases referred to by the dissent in Patriation Reference (1981); section 52(1) of the Constitution Act, 1867 (Provincial Judges Reference); or the constitution generally (Reference re Alberta Statutes (1938).
However, while the Court has not easily relied on unwritten principles alone, it has “recogniz[ed] a legal power fundamental to the constitutional regime which Canada has adopted in its Constitution Acts, 1867 to 1982” (New Brunswick Broadcasting Co. (note 3, p.377)).
The foundational principle of the rule of law is perhaps the most significant unwritten principle, constituting restraint on the actions of administrators and officials, among other functions. Importantly, it can provide a remedy when statute or express constitutional provision does not. In 1959, Rand J. famously described in Roncarelli v. Duplessis the consequences of an abuse of power, one that does not appear to be remedied by recourse to relevant statutes. To conclude, therefore, that there is no remedy,
in the presence of expanding administrative regulation of economic activities, such a step [revocation of a licence for reasons outside the statute] and its consequences are to be suffered by the victim without recourse or remedy, that an administration according to law is to be superseded by action dictated by and according to the arbitrary likes, dislikes and irrelevant purposes of public officers acting beyond their duty, would signalize the beginning of disintegration of the rule of law as a fundamental postulate of our constitutional structure. (p.142)
At the same time, Major J.’s admonition in Imperial Tobacco is valid as far as it goes: “[t]he rule of law is not an invitation to trivialize or supplant the Constitution’s written terms. Nor is it a tool by which to avoid legislative initiatives of which one is not in favour. On the contrary, it requires that courts give effect to the Constitution’s text, and apply, by whatever its terms, legislation that conforms to that text”. (para. 67)
However, there are occasions on which the Constitution’s text simply does not address an issue or does so incompletely: thus in the 1997 Provincial Judges Reference, Lamer C.J.C. said of the principle of judicial independence, “I am of the view that judicial independence is at root an unwritten constitutional principle, in the sense that it is exterior to the particular sections of the Constitution Acts.” (para. 84) After considering the application of express constitutional provisions (sections 96 and 100 of the Constitution Act, 1867), the Chief Justice concludes that they do not address all the circumstances that need to be addressed (including the fact that they do not apply to provincially-appointed judges), but have been interpreted more broadly than their terms:
This jurisprudential evolution undermines the force of the argument that the written text of the Constitution is comprehensive and definitive in its protection of judicial independence. The only way to explain the interpretation of ss. 96 and 100 , in fact, is by reference to a deeper set of unwritten understandings which are not found on the face of the document itself. (para. 89)
Again, however, I note that Lamer C.J.C. issues a word of caution about the need to recognize the primacy of the written constitution.
Similarly to Lamer C.J.’s exposition on unwritten principles in the Provincial Judges Reference, in providing the parameters around whether Quebec had a unilateral right to secede from Canada, the 1998 Secession Reference provides one of the more thorough analyses of the role of unwritten constitutional principles. The principles provide a guide — “aspects of a legal framework” — for negotiating secession, but the Court is clear that in establishing this guide, it is not intending to usurp political decision-making (para. 27). (In that case, the relevant principles are federalism, democracy, rule of law and respect for minorities; however, the Court’s general comments are not limited to them.)
The Court acknowledged that the principles are part of the constitution because the written text is insufficient to provide a complete constitutional framework:
The “Constitution of Canada” certainly includes the constitutional texts enumerated in s. 52(2) of the Constitution Act, 1982. Although these texts have a primary place in determining constitutional rules, they are not exhaustive. The Constitution also “embraces unwritten, as well as written rules”, as we recently observed in the Provincial Judges Reference…. Finally, as was said in the Patriation Reference …, the Constitution of Canada includes
the global system of rules and principles which govern the exercise of constitutional authority in the whole and in every part of the Canadian state.
These supporting principles and rules, which include constitutional conventions and the workings of Parliament, are a necessary part of our Constitution because problems or situations may arise which are not expressly dealt with by the text of the Constitution. In order to endure over time, a constitution must contain a comprehensive set of rules and principles which are capable of providing an exhaustive legal framework for our system of government. Such principles and rules emerge from an understanding of the constitutional text itself, the historical context, and previous judicial interpretations of constitutional meaning. (para. 32) (citations omitted)
As I have said elsewhere (“Recognizing Substantive Equality as a Foundational Constitutional Principle”, (1999) 22 (2) Dal Law JL)), “Underlying constitutional principles reflect a country’s national values, historical development and political framework. Foundational principles will affect both institutional arrangements and relations between the state and individuals and among various groups of inhabitants.” (pp. 8-9) As the Court recognizes, “our constitutional history demonstrates that our governing institutions have adapted and changed to reflect changing social and political values. This has generally been accomplished by methods that have ensured continuity, stability and legal order.” (Quebec Secession Reference, para. 33)
The relationship of the fundamental unwritten principles to the written text, which is the primary form of the Constitution, is crucial; however, behind the text are the underlying principles: as the Court explained in the Quebec Secession Reference, they “inform and sustain the constitutional text: they are the vital unstated assumptions upon which the text is based.” Furthermore, the priniciples “function in symbiosis. No single principle can be defined in isolation from the others, nor does any one principle trump or exclude the operation of any other.” (para. 49)
It is also important to note,
Underlying constitutional principles may in certain circumstances give rise to substantive legal obligations (have “full legal force”, as we described it in the Patriation Reference…), which constitute substantive limitations upon government action. These principles may give rise to very abstract and general obligations, or they may be more specific and precise in nature. The principles are not merely descriptive, but are also invested with a powerful normative force, and are binding upon both courts and governments. “In other words”, as this Court confirmed in the Manitoba Language Rights Reference, … “in the process of Constitutional adjudication, the Court may have regard to unwritten postulates which form the very foundation of the Constitution of Canada”. (Quebec Secession Reference, para. 54) (citations omitted; emphasis added)
The Court’s consideration of democracy in the Quebec Secession Reference provides a flavour of how it views the principles. Democracy refers to the process of representative and responsible government (para. 65), although the Court also considers it “fundamentally connected to substantive goals, most importantly, the promotion of self-government. Democracy accommodates cultural and group identities….” (para. 64) (citation omitted). It is more complicated than that, however:
a functioning democracy requires a continuous process of discussion. The Constitution mandates government by democratic legislatures, and an executive accountable to them, “resting ultimately on public opinion reached by discussion and the interplay of ideas” …. At both the federal and provincial level, by its very nature, the need to build majorities necessitates compromise, negotiation, and deliberation. No one has a monopoly on truth, and our system is predicated on the faith that in the marketplace of ideas, the best solutions to public problems will rise to the top. Inevitably, there will be dissenting voices. A democratic system of government is committed to considering those dissenting voices, and seeking to acknowledge and address those voices in the laws by which all in the community must live. (para. 68) (citation omitted)
Returning to the Court of Appeal’s City of Toronto decision, it is noteworthy that Miller J.A.’s consideration of the unwritten principles as proposed by the City fails to encompass the full breadth of how these principles have been treated in the jurisprudence. It is necessary to begin, however, with how the principles might apply. It is widely accepted that the municipalities are a creature of the province without independent status.
Omar Ha-Redeye discussed in a Slaw post last year the constitutional status of municipalities and an unsuccessful challenge under the Charter to amalgamation by the Harris government in 1995 of several cities to form the City of Toronto. He referred to the following statement by the Ontario Court of Appeal in adjudicating that challenge:
There is, with respect, no evidence of the existence either of a constitutional norm or of a constitutional convention [requiring] provinces [to obtain a municipality’s consent when making a change to the municipality]. When altering municipal institutions, there are undoubtedly sound political reasons for a provincial government to exercise great care in the process of consultation and, ultimately, of reform. The expressions of public disapproval with the methodology employed prior to the passage of the City of Toronto Act, 1997 confirm this truism. However, courts can only provide remedies for the public’s grievances if those grievances violate legal, as opposed to political proprieties. What is politically controversial is not necessarily constitutionally impermissible. [emphasis added by Ha-Redeye]
The Better Local Government Act, 2018, did not only reduce the number of wards in the City of Toronto, it also removed some of the powers that the City of Toronto Act, 2006 had delegated to Toronto, including, in summary, the following as outlined by Mary Flynn-Guglietti, Kailey Sutton and Maressa Singh.
In Ontario, municipalities are delegated power through the Municipal Act, 2001. However, the City of Toronto Act, 2006 (the “Act”) is a provincial statute that specifically delegates broad powers to the City and recognizes that the City “is a government that is capable of exercising its powers in a responsible and accountable fashion.”
In particular, s.8(2)(1) of the Act allows the City to pass by-laws respecting the governance structure of the City. The City has the authority to “divide or redivide the City into wards or to dissolve existing wards.” If there is a conflict between a by-law and any provincial act, the City by-law prevails. … The authority to change the composition of City Council is also found in the Act,11 as well as the authority to override any other act that relates to the City in particular, which seeks to change the composition of City Council12 and/or the wards. (citations omitted)
The City had also entered into an Agreement on Cooperation and Consultation between the City of Toronto and the Province of Ontario with the previous government. Its Preamble read in part as follows:
As provided for in the City of Toronto Act, 2006, it is in the best interests of the Province and the City to work together in a relationship of mutual respect, ongoing consultation and cooperation on matters of mutual interest; and to do so in accordance with an Agreement between the Province and the City.
It is in the best interests of the parties to exchange input on broad policy matters of mutual interest and to identify impacts that could arise from proposed changes in legislation, regulations, resolutions or bylaws.
The Agreement did not specifically address provincial consultation with Toronto about any changes to governance, but did refer to “proposed change in legislation or regulation that, in Ontario’s opinion, will have a significant financial or policy impact on the City” and “[b]road policy matters where, in the opinion of the Province, the Province and the City may have mutual interests; it did not explicitly exclude governance as a matter for consultation.
The Agreement reflected Toronto’s status and mutual respect in the City’s and the province’s dealings with each other (although not everyone may have believed these were always realized; for example, the premier of the day did not appear to honour the Agreement in relation to tolls on the Gardiner Expresswayand the Don Valley Parkway). The Agreement does not require the province to take — or not take — specific action in relation to the City. The Agreement is not enforceable. The province’s acceptance of it and framing its actions in accordance with it relies on good faith.
It is unlikely that the actual reduction in the number of wards is susceptible to a successful challenge on the basis of unwritten principles, despite the UK decision and even if a review of the Court of Appeal’s decision found its consideration of the principles to be lacking. I suggest, however, that the process may be contrary to the rule of law and democracy principles, and perhaps others. I am aware that, unlike Roncarelli v. Duplessis, we are dealing with legislation, not the decision of an individual. The Better Local Government Bill, 2018 was enacted by the majority of the Ontario Legislative Assembly. Despite that, a history of why and how it was enacted and its import may be vulnerable to review on the basis of unwritten constitutional principles.
Asking the UK Court’s question about the five week prorogation, “why did the Prime Minister need it?” is legitimate in this context, as well. It is true that it might seem appropriate not to wait until the next municipal election, but rather, pull the bandaid off, but the stronger argument is that it was not necessary. Indeed, there had been a recent review of council, which had recommended a small increase in the number from 44 to 47, on the basis that it would provide more effective representation, a recommendation accepted by the Council. Thus the provincial decision to cut the wards was in direct opposition to considered process and result. Furthermore, it was done quickly and without any evident consideration (likely justified on the basis that the municipal election was already underway).
The judges in the UK decision steered away from considering the Prime Minister’s motive, although it was raised as a ground of challenge. The Court held that only if the Prime Minister’s action was lawful, would they have to consider motive, including whether it was justiciable (UK decision, para.54). In the event, they did not need to go there, although as I suggested above, the fact that the Prime Minister did not need a lengthy prorogation does imply there is another, unexplained, reason for it. With respect to the reduction in the number of Toronto wards, the passage of the legislation was “lawful”, as the majority of the legislature passed it according to the appropriate process, quick as it was. But it does require an explanation.
I referred to the “why” briefly in a previous post, that cutting Toronto Council was vindication for how the premier, Doug Ford and his brother, former mayor Rob Ford, had been treated when they were members of council, as well as the realization of Rob Ford’s desire to cut council. (On this point, see, for example, Marcus Gee’s column here). There is an argument that the process, despite its surface legitimacy, was arbitrary and thus, despite the reduction in wards having a statutory basis, attracts the same rule of law analysis as did Roncarelli v. Duplessis.
Although the dissent in the Court of Appeal in the City of Toronto rejected the unwritten principles approach as such (although he does believe that the principle of democracy and section 2(b) intersect), preferring to rely on section 2(b) of the Charter, MacPherson J.A. pointed to the lack of consultation that would have been consistent with the Cooperation and Consultation Agreement (para. 107), described the timing as “represent[ing] a substantial attack on the centrepiece of democracy in an established order of Canadian government — an active election in a major Canadian municipality” (para. 116) and concluded by saying that the province’s action “left a trail of devastation of basic democratic principles in its wake” (para. 136).
While the application judge’s decision and the dissent in the Court of Appeal found contraventions of section 2(b) of the Charter, this was based on the changes in the wards that meant candidates had to change their expression, making their previous expression meaningless, as well as the role of volunteers, voters, donors and others. Important though all this was, it is particular to the timing of the enactment. Yet what matters in the long term are the process and reasons for the legislature’s — prompted by the premier — action regardless of whether the election was underway, although that reality certainly made the situation worse. It did not change the major points, though: that the province ignored the city’s views on the matter, contrary to the kind of discussion that democracy requires, even if not between the federal and provincial governments and that was arguably, despite the legislative process, a course taken for ulterior motives, contrary to the rule of law.
The City may be appealing the Court of Appeal decision. As Mayor John Tory said, “this case continues to be important as a means of helping to limit future intrusions of a similar nature in the absence of constitutional change.” It would provide an opportunity to develop some parameters to govern the relationship between the province and the largest city in Canada with its diverse population and complex obligations.