The Obligation for Constitutional Actors to Act in Good Faith

INTRODUCTION

In this post, I propose that the concept of bona fides, or acting in good faith, be applied to the conduct of constitutional actors. It is not unreasonable to expect that constitutional actors act in good faith towards one another. In this sense, I argue, the bona fides principle is a fundamental element of the rule of law that could serve to invalidate government action, depending on various factors which I discuss below, including the relevance of other principles and rules. A judicial conclusion that an actor had not acted in good faith might, in the balance, result in the determination that the impugned action is unconstitutional.

As a practical application of the bona fides principle, I use the example of the inception and passage between July and August 2018 of the Ontario Better Local Government Act, 2018 (“the Act”), which reduced the number of wards in the City of Toronto (“the City” or “Toronto”) from 47 to 25.

THE BONA FIDES PRINCIPLE

When someone (or an institution) acts in a bona fide way, it means their motivation is sincere, not a reflection, in the public sphere, of personal gain or of vindictiveness. It suggests that the action is for the reason the actor claims for it. When it does not appear that the reason is, in fact, the reason the actor claimed, one suspects the bona fides of the actor and/or action.

Acting in conformity with bona fides is an element of the rule of law. The components of the rule of law include that constitutional actors do not act in an arbitrary manner. Another way of phrasing that is that these actors act with bona fides.

This principle, I suggest, transcends particular constitutional authority and is “a general principle of law” expressing the moral expectations about the standard of legal, including constitutional, actors. (See Mirela Carmen Dobrilă in the Romanian context or the Supreme Court’s commentary about good faith in the contractual context in Bhasin v. Hrynew and in C.M. Callow Inc. v. Zollinger.)

Without overstating the congruence between contractual and constitutional law, the importance of the bona fides principle (a duty of honest performance in contract law) lies in Cromwell J.’s characterization in contract law of the duty of honest performance as “a general doctrine of contract law that imposes as a contractual duty a minimum standard of honest contractual performance” (Bhasin, para. 74).

In a similar way, the bona fides principle, I suggest, transcends particular constitutional authority or the express terms of the Constitution. It underlies the legitimacy of constitutional action, in a sense a sine qua non or, at least, a pre condition of legitimate constitutional action. My proposition is this: executive, including administrative, and legislative action must meet a basic constitutional requirement, that of being initiated in good faith. This might be characterized as underlying the architecture of the constitution or forming its minimum prerequisite.

Participants in the system have the right to expect that the other participants conduct themselves in good faith. Conduct motivated by mala fides should be treated as prima facie unconstitutional.

The distinction between “rules” and “principles” is helpful here. Rules make an act right or wrong (although of course, there are exceptions to rules, including discretion to disregard them), while principles can help interpret provisions as a guide to behaviour and may or may not invalidate them. Despite its name, the rule of law is a principle and, consistent with its name, so is the bona fides principle. This distinction may have ramifications for the appropriate remedy if an actor has acted with mala fides.

It is a Canadian “rule” that the Constitution is the supreme law. It is a rule that the courts may invalidate legislation. It is a rule that the legislature may override certain provisions of the Canadian Charter of Rights and Freedoms by invoking section 33 of the Charter. The following are principles: that the courts grant greater deference to the legislature’s determination of appropriate legislation or action under some circumstances than under others; or that courts may suspend declarations of invalidity. Principles must be assessed as to whether one outweighs the significance of others in the particular case and whether the failure to observe them does undermine the written requirements.

Bona fides is not invoked by simple disagreement with a decision. It does not mean that the legislature was persuaded by some members of the society rather than others, hard though that may be to accept sometimes. It should not be used easily and realistically, it would be difficult in the ordinary case to find that malfeasance had motivated the members of a legislature who supported a particular measure.

Critics may contend that this obligation of good faith does not extend to an entity that is, strictly speaking, not a constitutional partner to the province as personified by the premier. This obligation, however, does not extend only to constitutional partners in that sense. The obligation is one that stems from the constitution regardless of the object of the impugned act.

THE BONA FIDES PRINCIPLE AND THE BETTER LOCAL GOVERNMENT ACT, 2018

With respect to the Better Local Government Act, 2018 (Bill 5), it is possible to trace mala fides to the head of the executive, Premier Doug Ford, who initiated Bill 5 in order enact a significant change to the Toronto’s governance structure, one that conformed to his own failed efforts while he was a Toronto councillor. He had the benefit of leading a majority of members in the legislature with the power to enact Bill 5 in furtherance of that objective.

Of course, any government will seek to advance its priorities and when it has a majority, this is not difficult to do. It will often introduce legislation addressing those matters on which the new governing party had placed emphasis when campaiging for office or on which it had often spoken prior to attaining office. This is one of the perks of gaining power. And whether initially or later in the government’s mandate, it may well introduce legislation dealing with matters about which it had previously said nothing. There are times it must do so because of new circumstances. So what made this situation different?

A proper understanding of the answer to this question must take us back to the time of Doug Ford’s membership on Toronto Council. He devoted much of his effort then to cost-cutting. Although he was at times friendly, he was, in the experience of colleagues, capable of being petty. He lost the election for mayor in 2014 to John Tory, the current Toronto mayor.

Evidently, the work leading up to the introduction of the Better Local Government Act began the day after the election, which occurred on June 7, 2018. (For the history, see “Doug Ford government started work on cuts to Toronto City Council a day after election win” in The Globe and Mail.)

The first session of the 42nd Parliament began on July 11th. The first reading of Bill 5, the Better Local Government Act, occurred on July 30th, the second reading on August 2nd, 7th, 8th and 14th. Third reading and Royal Assent took place on August 14th.

There were no committee hearings, which would have enabled those affected to make submissions. The only justifications were general statements because there had been no studies or policy analysis undertaken to determine whether the government’s approach satisfied the needs of the population of a city the size of Toronto. Nor was there any effort to consult or act in cooperation with the City.

The enactment was a surprise, coming as it did in the midst of an ongoing Toronto election. Closure of nominations occurred on the same day the government introduced the bill. It followed the recent implementation of a report that actually increased the number of city councillors. It did not replace the analysis in that report with any policy justification. It reduced the wards to 25, the same as the provincial (and federal) constituencies, ignoring that the report had rejected that very number. The Ontario Municipal Board rejected a challenge to the conclusion the report reached and the Divisional Court dismissed an application for judicial review. (For more detail about the review and the report, see Abella J.’s dissent in the Supreme Court of Canada’s decision in City of Toronto at paras. 91-98.)

In the recent provincial election campaign, the Conservative platform did include reducing the cost and size of government. However, Doug Ford had made no mention of cutting Toronto council and the ensuing legislation, supposedly a more general statute, affected only the City of Toronto and four regional governments (including Peel where Patrick Brown, another Ford “enemy”, was running for chair). The Government’s (and Premier’s own) response to this criticism is that the Premier had raised the issue when he was a City of Toronto councillor (Nathalie Des Rosiers, “Deference to Legislatures: The Case of The Better Local Government Act” (Des Rosiers), pp.55, 46 respectively).

Furthermore, the Lieutenant-Governor did not mention it in the Speech from the Throne (see Des Rosiers, p.44). And as Des Rosier points out, the Premier’s Office announced Bill 5, not as would normally be the case, the Minister of Municipal Affairs and Housing.

While not binding on the provincial government, the City of Toronto did have legitimate expectations about the nature of its relationship with the province.

Under section 2, the City of Toronto Act, 2006 acknowledged that one of the things the City must be able to do “in order to provide good government” is to “[d]etermine the appropriate structure for governing the City”. This included passing a by-law respecting the “[g]overnance structure of the City” (s.8(2)1).

The Better Local Government Act amended the City of Toronto Act, 2006 to add a limitation to the City’s power to determine the appropriate government structure: the provision now reads, “Determine the appropriate structure for governing the City other than with respect to the composition of city council and the division of the City into wards” (emphasis added). The statute made similar amendment to section 8(2) of the City of Toronto Act, 2006.

Paragraphs 2 and 3 of section 4 of the City of Toronto Act, 2006 provided that the City could override a “special Act” in relation to “[e]stablishing, changing or dissolving wards” and “[c]hanging the composition of city council”, among other matters. The Better Local Government Act repealed these paragraphs.

When the City and others challenged the Better Local Government Act in court, and the original decision found in their favour, the Premier stated that he was prepared to use the notwithstanding clause in order to protect the Act (see CBC story here).

In sum, several factors, each of which alone is legal, considered together raise serious questions about the bona fides of the introduction and consequent enactment of the Better Local Government Act:

the Premier’s failed efforts when he was at City council to accomplish the same goal of reducing the number of Toronto wards;

the rapidity with which the work began to bring the legislation to fruition (this might be explained as the need to affect the ongoing election; however, at least equally, one must question the need to intervene in an ongoing election, particularly so soon after the earlier review of the system);

the unusual process of introducing and shepherding the legislation through the legislature;

the lack of consultation with the City and the public;

the name of the Act compared with its limited application;

although it was not important enough an issue to raise during the campaign or the Throne Speech, it was sufficiently significant to invoke section 33 of the Charter.

It is hard to avoid the conclusion that the decision to enact the Better Local Government Act stemmed from the Premier’s own preoccupation, one that had already been considered and rejected previously through a proper process. He was completing what for him was unfinished business. In “Cities may be ‘creatures’ of the provinces. But Ford’s slashing of Toronto city council is still an insult“, Marcus Gee writes,

Trimming council had been a hobby horse of Mr. Ford and his brother Rob when Rob was mayor and Doug was his right-hand man. It was a populist pose aimed to appeal to those who want to cut bloated governments and fat-cat politicians down to size – or “stop the gravy train,” as they memorably put it.

Council wouldn’t let them do it. Now that he was Premier, Mr. Ford was determined to get his way. He would take a knife to what he called the “most dysfunctional political arena” in the country. It looked very much like revenge.

Assuming for the moment that this history allows us to conclude that Ford’s conduct reveals a lack of bona fides or good faith in introducing the Better Local Government Act, which his recently elected majority government ratified, it is still necessary to distinguish the rule of law/bona fides principle from the majority’s rejection of unwritten principles in The City of Toronto. Reliance on what is essentially an unwritten principle — the rule of law — runs counter to Wagner C.J.C. and Bown J.’s admonition against finding legislation invalid only because it runs afoul of an unwritten principle.

No doubt, some would immediately argue that no matter what the merits of the argumente that the Premier acted with male fides, it is not possible to attribute lack of bona fides to the majority of members who voted for the Better Local Government Act and that I concede. That is not the issue here, however. Rather, it is that the initiating of the legislation, the decision to bring it to the legislature, lay with the Premier. Once before the Chamber, under the circumstances of a newly elected majority government, the Premier’s own imprimatur on Bill 5 and the short time period between first reading and Royal Assent, there is at least a prima facie case (that could be rebutted) that it is the Premier’s wishes that the Conservative members of the Assembly were executing.

THE CITY OF TORONTO CASE AND UNWRITTEN PRINCIPLES

The Superior Court of Justice (“SCJ”) held the provisions in the Better Local Government Act affecting Toronto council contravened section 2(b) of the Charter (directly and as informed by section 3 of the Charter). In a decision “by the Court”, the Court of Appeal (“CA”) granted a stay of that decision and eventually, in a 3-2 decision, allowed Ontario’s appeal from the SCJ’s decision. The Supreme Court of Canada, dividing 5-4, dismissed the City’s appeal from the Court of Appeal’s decision.

I am revisiting neither claims under sections 2(b) or 3 of the Canadian Charter of Rights and Freedoms nor the analysis of the unwritten principles such as democracy. Nor am I addressing the arguments that played a major role in the Supreme Court’s decision, especially the dissent’s reasons relating to when the changes to the ward system were to take effect, except as background. Rather, I’m exploring the applicability of bona fides, a specific element of the rule of law, to the process that resulted in the Better Local Government Act.

None of the courts addressed — and the parties did not ask the courts address — the technical legitimacy of the legislation. It would not be possible to sustain a challenge to the legislation on the basis of technical legitimacy; however, certain aspects of the process of bringing the Act to fruition are part of the background that raises concerns about the bona fides of its introduction and, as tainted by that, its ultimate enactment.

As far as the division of powers is concerned, there is no dispute that the provinces have jurisdiction over municipalities under section 92(8) of the Constitution Act, 1867 (“Municipal Institutions in the Province”). (Both the majority and dissent acknowledge this is the case. See the majority’s review of the jurisprudence at para. 2 and the dissent’s statement at para. 112 of City of Toronto.) This is so despite the size and responsibilities of the country’s largest cities.

Writing for the majority at the Supreme Court of Canada in City of Toronto, Wagner C.J. and Brown J. characterized the issue in the case as follows: “this appeal, fundamentally, concerns the exercise of provincial legislative authority over municipalities. The issue, simply put, is whether and how the Constitution of Canada restrains a provincial legislature from changing the conditions by and under which campaigns for elected municipal councils are conducted.” (City of Toronto, SCC, para. 1)

This anodyne statement, while accurate, fails to emphasize the circumstances under which the government introduced and the legislature enacted the impugned legislation. Unpacking the “how” reveals the omission of a crucial aspect that, I argue, should characterize government action, that of bona fides.

For Wagner C.J. and Brown J., the provisions in the City of Toronto Act, 2006 about the relationship between the City of Toronto and the province are meaningless. They state: “No constitutional norms or conventions prevent a province from making changes to municipal institutions without municipal consent” (City of Toronto, para. 2), deriving from Abella J.A’s (as she then was) reasoning for the Ontario Court of Appeal in East York (Borough) v. Ontario (Attorney General of) (“East York“).

East York involved a challenge under the Charter to the new City of Toronto Act, 1997, which, the claimants alleged, “the ratio between numbers of voters and elected representatives under the new legislation is too high, and, in any event, higher than the ratios found in the neighbouring municipalities” (East York). The Court of Appeal held that there was no evidence to support the allegations.

In addition, the claimants in East York also argued that the province’s authority under section 92(8) of the Constitution Act, 1867 “was circumscribed by implicit constitutional conventions … or by implicit constitutional norms … not to effect change to a municipal institution without its consent”. The Court of Appeal also rejected this argument.

As with the province’s action in East York, the legislation in the City of Toronto created a political uproar. But, as Abella J.A. noted in East York,

there are undoubtedly sound political reasons for a provincial government to exercise great care in the process of consultation and, ultimately, of reform. … 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.

All true. However, the issue in the City of Toronto is the process and motivation, which together contravene the rule of law, the principle against arbitrary decision-making, that is, decision-making based on personal whim. Thus the province’s treatment of the provisions of the City of Toronto Act, 2006, while not in themselves enforceable, it appears, nevertheless add to the factors giving rise to a failure to act in accordance with the bona fides principle (as I identified above).

Chief Justice Wagner and Brown J.’s target in City of Toronto is whittling down the potential impact of unwritten or foundational principles. Reviewing the jurisprudence on unwritten principles, they narrow the scope of the previous SCC cases that discuss how the unwritten priniciples have the “full force of law’.

Acknowledging the “foundational” nature of the principles, that they have “full legal force” and “may give rise to substantive legal obligations”, Wagner C.J. and Brown J. agree with the Court of Appeal’s statement in City of Toronto that “'[L]ike all principles of political morality, [unwritten principles] can guide and constrain the decision‑making of the executive and legislative branches’” (see City of Toronto, CA, para. 84). Thus “[u]nwritten principles are therefore part of the law of our Constitution, in the sense that they form part of the context and backdrop to the Constitution’s written terms” (emphasis in original). (City of Toronto, SCC, paras. 49, 50).

However,Wagner C.J. and Brown J. give weight to the unwritten principles only if they are linked to the Constitution’s written terms, only if they have “a strong textual base” (writing about why federalism has “full legal force”). They distinguish Reference re Resolution to Amend the Constitution (“Patriation Reference“), for example, from the current case because federalism has a strong textual base: “while the specific aspects of federalism at issue there may not have been found in the express terms of the Constitution, federalism is” (City of Toronto, SCC, para. 52, emphasis in original):

Structures are not comprised of unattached externalities; they are embodiments of their constituent, conjoined parts. The structure of our Constitution is identified by way of its actual provisions, recorded in its text. This is why our colleague can offer no example of legislation that would undermine the structure of the Constitution that cannot be addressed as we propose, which is via purposive textual interpretation. It is also why, once “constitutional structure” is properly understood, it becomes clear that, when our colleague invokes “constitutional structure”, she is in substance inviting judicial invalidation of legislation in a manner that is wholly untethered from that structure. (City of Toronto, SCC, para. 53)

And they continue:

Unwritten constitutional principles are not ‘provisions of the Constitution’. Their legal force lies in their representation of general principles within which our constitutional order operates and, therefore, by which the Constitution’s written terms — its provisions — are to be given effect. In practical terms, this means that unwritten constitutional principles may assist courts in only two distinct but related ways. (City of Toronto, SCC, para. 54, emphasis in original)

Unwritten principles may aid in the interpretation of the express terms. And they may fill in gaps “and address important questions on which the text of the Constitution is silent”.

Concerned that it would “raise questions about the legitimacy of judicial review”, Wagner C.J. and Brown J. resist the view that unwritten principles alone can ground a holding of invalidity; unwritten principles are “nebulous”, potentially making written provisions redundant and “undermin[ing] the delimitation of those rights chosen by our constitutional framers” (City of Toronto, SCC, para. 59). However, one reason they can make this argument is because they treat the written terms as clearly defined: they promote “legal certainty and predictability” (citing the Secession Reference, para. 53). Therefore unjust or unfair legislation must be addressed through the Constitution’s written text or the ballot box: this “cover[s] all possible bases for claims of right (i.e., ‘unjust or unfair’ or otherwise normatively deficient)”.

Furthermore, Wagner C.J. and Brown J. explain, employing one unwritten principle to invalidate legislation may ignore that other unwritten principles may justify its validity when it conforms to the express provisions of the constitution (relying on Imperial Tobacco, para. 66) (City of Toronto, SCC, para. 71).

From Wagner C.J. and Brown J.’s perspective, another problem would be that if a court invalidates legislation on the basis of the express text, the legislature can invoke section 33 of the Charter, whereas it has no such recourse should a court resort to unwritten principles. And there is no equivalent section 1 justification available for unwritten principles. (City of Toronto, SCC, para. 60). Nor, they say, does section 52(1) apply to unwritten principles (City of Toronto, SCC, para. 5).

In their rush to curtail what they evidently perceive as the overweaning potential of the foundational principles, Wagner C.J. and Brown J. do not give sufficient credit to opposing considerations.

For example, their review fails to acknowledge and apply the principles inherited from the unwritten constitution of the United Kingdom, including the basic principle of the rule of law. As Abella J., in dissent, notes,

In the Reference re Secession of Quebec, … the Court identified the unwritten constitutional principles of democracy, judicial independence, federalism, constitutionalism and the rule of law, and the protection of minorities. These principles are derived from the preamble to the Constitution Act, 1867, which describes our Constitution as “a Constitution similar in Principle to that of the United Kingdom” …. (City of Toronto, SCC, para. 164 [citations and references omitted])

The Charter is not the only source of rights and expectations about constitutional behaviour. The implied bill of rights, arising from the common law constitution, did not rely on a written text: see, for example, Reference re Alberta Statutes, Saumur v. City of Quebec and Switzman v. Elbling.

Furthermore, I suggest, it is the fact that, as they say, unwritten principles can “address important questions on which the text of the Constitution is silent” which permits reliance on unwritten principles that are fundamental to the proper functioning of a constitutional system, including the rule of law. While the written text is “static” in a certain sense, the express text has only a skeletal meaning, even if resort is had to the constitutional debates, and it is the judiciary that has added nuance and richness to them.

As for the reality that the application of one unwritten principle may result in one outcome, while another principle may result in another, this is no different from the conflict and reconciliation process that occurs with Charter guarantees or, indeed, with judicially developed interpretations to address division of powers provisions.

One must also view the application of section 33 in a fuller context. Section 33 does not apply to all Charter guarantees, including, most notably in the context of the City of Toronto case, section 3. Whether section 52(1) applies to unwritten principles may not be as clear cut as Wagner C.J. and Brown J. contend; for example, Abella J., in dissent, suggests that as part of the Constitution, unwritten principles are subject to section 52(1) (City of Toronto, SCC, para. 183).

Justice Abella reminds us of the comment in the Secession Reference that unwritten principles “‘are so foundational that including them in the written text “might have appeared redundant, even silly, to the framers’” (City of Toronto, SCC, para. 167, citing Secession Reference, para. 62)).

It may well have seemed “silly” to have to provide explicitly in the Constitution that the partners to confederation must act in good faith to one another. It is “foundational”, it is obvious. It is an organizing principle of constitutional law, as it is of contract law (CM Callow Inc. v. Zollinger). One might not unreasonably object that municipalities are not partners to the Constitution. However, surely they do not require constitutional status to expect the same treatment as do parties to a private contract.

Without denying that a number of unwritten principles are fundamental to our constitutional system and underlie our political structures and processes, it seems to me that there is one that without it our system would quickly shift to one best described as authoritarian. In short, the rule of law is the pillar that supports a system that permits and even encourages other principles. And, I have argued, one aspect of the rule of law is the bona fides principle. Without being able to rely on the good faith of constitutional actors, our ability to act on the basis of expectations can amount to nought. Failure to do so requires a statement of disapprobation from the branch responsible for enforcing the constitution, the judiciary.

FACTORS AFFECTING REMEDY

There is also the question of remedy. Here is the rub: should the court declare legislation invalid on the basis that the operative constitutional actor had not abided by the bona fide principle. Given what I argue is its significance as a bedrock of the constitution, in a sense preceding the written text, there is an argument for doing so. Yet in this case, even if a court were to reject that remedy, the importance of a declaration that government not be the plaything of the sitting Premier is not a minor matter.

Des Rosiers suggests, building on the work of others, that there are reasons courts should be less deferential of the legislature when it enacts legislation than it might normally be. For example, she notes the lack of consultation during the process under which the government introduced the Better Local Government Act, 2018. She does not include lack of bona fides in the list of reasons, but I contend that this is a fundamental requirement for the rule of law and thus also constitutes a fundamental underpinning to properly enacted legislation.

True cases of male fides would be, I expect, rare. In my view, however, once a court finds mala fides, it is necessary to show that it has otherwise properly met constitutonal requirements in order to justify that the mala fides has not been cured but at least displaced as an operating principle.

Judicial assessment of whether the court should grant a remedy would include the following factors (among others as relevant): weighing the consequences of ignoring the unconstitutional (male fides) action against what might be perceived as judicial intrusion; whether applying the principle would undermine or enhance the written constitutional text, if relevant; the significance of other relevant principles (such as resisting judicial interference in the legislative process) compared to letting off “bad actors”; the value more generally of making a statement about what is in effect the expected moral probity of an actor in another constitutional branch; the benefit of treating principles like conventions, which, if not observed, may result in judicial declarations of improper conduct.

Given the judicial responsibility for ensuring that the constitution is observed, the court should not retreat behind the platitude that the remedy lies in the political sphere. The failure to act with bona fides is a failure to act in a manner consistent with the rule of law. At a minimum, the court has an obligation to declare unconstitutional conduct, since surely the premier is expected to act in good faith, just as the party to a contract is expected to carry out its terms in good faith.

CONCLUSION

Although in a different context, Roncarelli v. Duplessis makes it clear that a premier is not above the law and that their action must satisfy the requirement of being bona fides. Duplessis acted out of his own personal bias and took advantage of his position to achieve his objective; he used a legally appointed officer to achieve his goal when he himself did not have authority under the operative legislation.

Despite being shielded by the legislature and minimal legislative process, Premier Ford also acted out of his own personal bias and took advantage of his new position to achieve an objective he failed to achieve as a councillor. In the process, he ignored, as he legally could, the legislative statement about the desired relationship between the City and the province.

Speaking more generally, if the constitutional arrangement is to operate smoothly or even to survive (vide the United States), it is a minimal expectation that relevant actors will conduct themselves in conformity with the bona fide principle. This underpins the effectiveness of the express text of the constitution; it cannot be linked to one or even more than one term because it infuses the constitutional structure and the actions that flow from it. Whatever the merits of this latest iteration of the status of unwritten principles and of any evolution in the future, acknowledgement of the significance of the bona fide principle would tell constitutional actors they must respect the norms governing constitutional behaviour.