TEMPLATE > single-blogue.php
Toronto’s Municipal Election Makes Waves Across the Country

Toronto’s Municipal Election Makes Waves Across the Country

The past two weeks have been nothing short of explosive in the Canadian legal community, with the dust only beginning to settle on the legal and political fallout from a decision rendered by Justice Belobaba of the Superior Court of Ontario (City of Toronto et al. v. Ontario (Attorney General), 2018 ONSC 5151). On September 10, Justice Belobaba issued a groundbreaking ruling invalidating Bill 5, or the Better Local Government Act, 2018, which had been adopted by Doug Ford’s provincial government earlier in the summer. The key impugned provisions of Bill 5 changed the number of wards and councillors in Toronto from 47 to 25 – in the middle of Toronto’s municipal election campaign, for which the actual election will take place on October 20.

The Superior Court ruling hinged on two key arguments made by the City – that Bill 5 violated the freedom of expression, protected by section 2(b) of the Canadian Charter of Rights and Freedoms, of both voters and candidates in the municipal election.

The application judge, Justice Belobaba, first accepted that candidates’ 2(b) rights were breached because the change in ward numbers (and sizes) “substantially interfered with the candidate’s ability to effectively communicate his or her political message to the relevant voters” (para. 32), as “candidates were not given a reasonable opportunity to present their positions” (para. 36). He concluded that “[o]nce the Province has entered the field and provided an electoral process, it may not suddenly and in the middle of this electoral process impose new rules that undermine an otherwise fair election and substantially interfere with the candidates’ freedom of expression” (para. 37).

The application judge moreover held that municipal voters’ freedom of expression had also been infringed, on the basis not only that voting is an inherently expressive activity (a generally accepted proposition in the jurisprudence), but also that the right to effective representation is a key component of the right to vote (para. 40). Bill 5 violated the principle of effective representation because – according to the Toronto Ward Boundary Review, a report filed into evidence by the City – “at the current 61,000 average ward size, city councillors were already having difficulty providing effective representation” (para. 55). The application judge accepted that “if the 25 [wards] option was adopted, City councillors would not have the capacity to respond in a timely fashion to the “grievances and concerns” of their constituents” (para. 58). In his view, this was a violation of the right to effective representation inherent in the right to vote, and thus a violation of voters’ freedom of expression guaranteed by section 2(b).

The application judge finally concluded that these infringements of section 2(b) could not be justified under section 1 of the Charter, since in his view, the government had failed to identify even any pressing and substantial concern that could justify changing Toronto’s ward number and size midway through an election campaign.

Much has been written about the subsequent political uproar caused by Doug Ford’s announcement that he intended to use section 33 of the Charter, the “notwithstanding clause”, to override Justice Belobaba’s decision. Yet just ten days later, on September 19, the Court of Appeal issued a stay of the Superior Court order invalidating Bill 5 (Toronto (City) v. Ontario (Attorney General), 2018 ONCA 761).

Applying the well-known three-part RJR-MacDonald test for the issuance of a stay of a court order, the Court of Appeal noted that it had to give significantly more weight to the strength of the appeal at the “serious issue to be tried” stage, since the rights of the parties would for all intents be determined by the outcome of the stay motion – the full appeal would not be heard before the election is scheduled to take place.

In evaluating the strength of the province’s arguments against the Superior Court judgment, the Court of Appeal zeroed in on the most problematic aspects of Justice Belobaba’s reasons – namely his novel interpretations of section 2(b) of the Charter.

According to the unanimous three-judge panel, the application judge erred by agreeing that Bill 5 violated the 2(b) rights of municipal candidates. While Bill 5 certainly disrupted campaigns that were already underway, it did not limit or restrict any messages that candidates wished to convey – even though it might have reduced their effectiveness (para. 13). This, the Court of Appeal held in citing to Baier v. Alberta, 2007 SCC 31, and Delisle v. Canada (Deputy Attorney General), [1999] 2 SCR 989, is not sufficient to constitute a violation of 2(b) as it does not prevent the communication of candidates’ messages altogether (para. 16).

Moreover, in concluding that Bill 5 violated the 2(b) rights of municipal voters, the application judge blurred the demarcation between two distinct provisions of the Charter. The principle of effective representation is traditionally associated with the right to vote guaranteed by section 3 of the Charter – a right limited to federal and provincial elections (Haig v. Canada, [1993] 2 SCR 995, pp. 1031, 1033). “Section 3,” the Court of Appeal wrote, “does not apply to municipal elections and has no bearing on the issues raised in this case” (para. 12):

We find it difficult to see how the right to effective representation, which is at the core of s. 3, is somehow embraced by s. 2(b), which protects freedom of expression. Section 2(b) and s. 3 rights are distinct rights to be given independent meaning. Moreover, as already noted, s. 3 of the Charter has no application to municipal elections and it does not protect them. While rights can overlap and a limit on the scope of one right should not be used to narrow the scope of another right, it does not follow that doctrines pertaining to s. 3 can be imported to expand the reach of s. 2(b) (para. 17, emphasis added, citations omitted).

Moreover, and in my view quite importantly, the Court of Appeal noted that “the application judge’s conclusion that Ontario substantially interfered with the voter’s right of freedom of expression when it doubled the ward population size from a 61,000 average to a 110,000 average cannot be supported”:

The size of the City’s electoral wards is a question of policy and choice to be determined by the legislative process subject to other provisions of the Charter, including s. 15(1). Whether wards of 61,000 or 110,000 are required to ensure effective representation is a debatable issue that cannot be determined by reference to the right to freedom of expression (para. 18, emphasis added).

While this is a fairly laconic conclusion that could be further developed at the merits stage of the province’s appeal, in my view the Court of Appeal’s holding in this regard is very important. It is dubious, to say the least, that it would be proper for a judge to rely on a single study to find as fact that there is a maximum population size above which an elected representative would not be able to provide constituents with “effective representation”. In addition to this being a highly political question, the perhaps-unintended consequence of Justice Belobaba’s conclusion would be to effectively constitutionalize the right to constituencies of a certain size for any municipality, not just the City of Toronto.

Moreover, given that the right to effective representation protected through section 3 of the Charter actually applies to provincial and federal elections, it seems that a conclusion as to the appropriate constituency size for effective representation would logically extend to those levels of government. Had the Court of Appeal not remarked on the propriety of the Superior Court’s conclusions, this could have had serious implications for upcoming provincial and federal elections as parties might have used Justice Belobaba’s reasoning to seek a judicial guarantee of constituencies of a certain population. Yet, subject to court control for equality in voter representation, constituency size and riding number are surely among the most political of choices a government could make. In that regard, it is actually unfortunate that the Court of Appeal confined its remarks to the freedom of expression context only, rather than making a broader point about the scope of section 3 (though one that was admittedly not strictly necessary in the context of this case).

Ultimately, while the judgments about Bill 5 have unleashed a Pandora’s box of legal and political issues – the public debate about the propriety of resorting to the notwithstanding clause, and the legal discussion of the interaction between sections 2(b) and 3 of the Charter, being only the most obvious – it seems important to point out that one of the less-discussed, but no less important, issues is the manner in which Justice Belobaba’s reasons have illustrated the tensions inherent in existing interpretations of section 3 of the Charter. To the extent that the guarantee of “effective representation” might open the door to allowing judges to opine on the propriety of constituency population or riding size, this would be a serious judicial foray into social policy that should not be treated lightly by politicians or jurists. In that regard, a clarification of the scope of the section 3 itself – whether in the full appeal of Justice Belobaba’s decision, or in subsequent caselaw relating to provincial or federal elections – would be most welcome.

Stay tuned to the latest legal news, signup to our blog.

Keywords
  • 1480 CCQ
  • 165(4) CCP
  • 358 CCP
  • 51 CCP
  • aboriginal law
  • abuse of procedure
  • abuse of process
  • abusive proceedings
  • access to justice
  • acquisitive prescription
  • advocacy
  • animal rights
  • apparent mandate
  • appeal
  • article 51 CPC
  • authority of law
  • Automobile Insurance Act
  • capacity
  • causation
  • certification
  • charter
  • chose jugée
  • class action authorization
  • code of ethics
  • comeback clauses
  • comity
  • conflict of interest
  • contempt of court
  • contract interpretation
  • contracts
  • contractual interpretation
  • corporate liability
  • costs
  • Court of Appeal
  • Crown immunity
  • crown liability
  • declinatory exceptions
  • discovery
  • disqualification of attorneys
  • duty of loyalty
  • duty to inform
  • employment
  • enforcement of judgments
  • evidence
  • family law
  • fiduciary duty
  • forum non conveniens
  • gift
  • Girouard
  • good faith
  • homologation
  • indemnité de départ
  • indirect damages
  • injunctions
  • inscription in appeal
  • insurance
  • interjurisdictional immunity
  • interlocutory injunction
  • international law
  • intervention
  • Joseph Raz
  • judicial review
  • jurisprudence
  • leave to appeal
  • legislative interpretation
  • liability
  • litigation privilege
  • mandate in case of incapacity
  • minimisation
  • mitigation
  • Motion to dismiss
  • new CCP
  • new evidence
  • news
  • notary
  • notice
  • objections
  • oppression remedies
  • personal liability of directors
  • pipeline
  • préavis
  • precedents
  • private international law
  • privilege
  • procedural fairness
  • procedure
  • production of documents
  • professional liability
  • professional secrecy
  • protective regime
  • provision for costs
  • provisional injunctions
  • reasonableness review
  • Ronald Dworkin
  • safeguard orders
  • Service
  • severance
  • shareholder oppression
  • solidary liability
  • standard form contracts
  • standard of review
  • state immunity
  • stay of proceedings
  • succession
  • tax
  • theory of law
  • transactions
  • transitional law
  • trusts
  • tutorship
  • undue influence