In a 5-4 split, the Supreme Court of Canada has upheld Ontario’s Better Local Government Act, 2018, which reduced the size of the Toronto City Council shortly before the October 22, 2018, municipal election.
On May 1, 2018, the City of Toronto municipal election campaign commenced and nominations opened in preparation for an election day on October 22, 2018.On July 27, 2018, the closing day for nominations, Ontario announced its intention to introduce legislation reducing the size of the Toronto City Council. On August 14, 2018, the Better Local Government Act, 2018, came into force, reducing the number of wards from 47 to 25.
The City and two groups of private individuals challenged the constitutionality of the Act and applied for orders restoring the 47‑ward structure. The application judge found that the Act limited the municipal candidates’ right to freedom of expression under s. 2(b) of the Charter and municipal voters’ s. 2(b) right to effective representation.He held that these limits could not be justified under s. 1 of the Charter and set aside the impugned provisions of the Act. Ontario appealed and moved to stay the judgment pending appeal. The Court of Appeal granted the stay and, on October 22, 2018, the municipal election proceeded on the basis of the 25‑ward structure created by the Act. The Court of Appeal later allowed the appeal, finding no limit on freedom of expression.
Wagner J. and Brown. J., writing for the majority, identified the central issue to this appeal as to whether the s. 2(b) right Ontario allegedly infringed was properly characterized as a negative or positive claim of right. In answering this question, the majority applied the framework from Baier v Alberta, 2007 SCC 31 (“Baier”).
In Baier, however, the Supreme Court explained that s. 2(b) may, in certain circumstances, impose positive obligations on the government to facilitate expression. Put differently, while s. 2(b) typically “prohibits gags”, it can also, in rare and narrowly circumscribed cases, “compel the distribution of megaphones”. In Baier, the Supreme Court shielded positive claims from the Irwin Toy framework and subjected them to an elevated threshold. An elevated threshold for positive claims narrows the circumstances in which a government or legislature must legislate or otherwise act to support freedom of expression.
The majority held that Baier remains good law in the context of s. 2(b). It affirmed Baier as a useful and necessary framework in the context of positive s. 2(b), and went on to distill the framework to a single core question: is the claim grounded in the fundamental Charter freedom of expression, such that, by denying access to a statutory platform or by otherwise failing to act, the government has either substantially interfered with freedom of expression, or had the purpose of interfering with freedom of expression?
The majority characterized the City of Toronto’s claim as either seeking to restore an earlier statutory platform or of maintaining an existing statutory platform. The majority found that either claim of right was positive in nature, and the Baier framework therefore applied.
The majority found that the candidates and their supporters had 69 days to reorient their messages and freely express themselves according to the new ward structure. The Act did not prevent candidates from engaging in further political speech under the new structure.Candidates continued to campaign vigorously, canvassing and debating about issues unrelated to the impugned provisions, the size of council, or the ward boundaries. And even had they not, nothing in the Act prevented them from doing so. It imposed no restrictions on the content or meaning of the messages that participants could convey.Many of the challengers who continued to campaign ultimately had, by any measure, successful campaigns, raising significant amounts of money and receiving significant numbers of votes. This would not have been possible had their s. 2(b) rights been so radically frustrated so as to effectively preclude meaningful expression.
Some of the candidates’ prior expressions may have lost their relevance; pamphlets or other campaign paraphernalia with an old ward designation on them, for instance, had to be revised or discarded. But, with the new ward structure — and larger ward populations — came higher campaign expenditure limits, so candidates were able to raise more funds over the 69 days they had left in the campaign.The majority found this was therefore a complaint that the prior expression of the candidates was no longer meaningful or helpful in their project to secure election. It is, at its root, a complaint about diminished effectiveness, which did not satisfy the Baier threshold.In the context of a positive claim, only extreme government action that extinguishes the effectiveness of expression — for instance, instituting a two-day electoral campaign — may rise to the level of substantial interference with freedom of expression; such an act may effectively preclude meaningful expression in the context of the election. Section 2(b) is not a guarantee of the effectiveness or continued relevance of a message, or that campaign materials otherwise retain their usefulness throughout the campaign.
Having found no limit to s. 2(b), the majority did not consider s. 1.
The City of Toronto argued that the change in ward structure violated the unwritten principle of democracy by denying voters effective representation and disrupting the election process.
The majority held that unwritten constitutional principles cannot be used to invalidate otherwise valid legislation.
The majority also accepted that the Constitution of Canada embodies written and unwritten norms. Unwritten principles are 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. The majority held that the “full legal force” of unwritten constitutional principles 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.The majority identified the only two ways unwritten constitutional principles may assist courts: they may be used in the interpretation of constitutional provisions, or they can be used to develop structural doctrines unstated in the written Constitution per se, but necessary to the coherence of, and flowing by implication from, its architecture.
Attempts to apply unwritten constitutional principles as an independent basis to invalidate legislation trespass into legislative authority to amend the Constitution, thereby raising fundamental concerns about the legitimacy of judicial review and distorting the separation of powers.Unlike the written text of the Constitution, which promotes legal certainty and predictability in the exercise of judicial review, the abstract and nebulous nature of the unwritten principles makes them susceptible to be interpreted so as to render many of our written constitutional rights redundant and, in doing so, undermine the delimitation of those rights chosen by our constitutional framers.
In this case, the majority identified the democratic principle as a relevant guide to the interpretation of the constitutional text. It supported an understanding of free expression as including political expression made in furtherance of a political campaign. But it could not be used in a manner that went beyond this interpretive role. In particular, it could not be used as an independent basis to invalidate legislation.
The majority dismissed the appeal.
Abella J., writing for the minority, would have granted the appeal. She noted that completely revamping the electoral process in the middle of an election was unprecedented in Canadian history. The question was whether it was also unconstitutional. In her view, it was.
Under s. 92(8) of the Constitution Act, 1867, the provinces have exclusive jurisdiction over “Municipal Institutions in the Province”. The question therefore of whether Ontario had the authority to legislate a change in Toronto’s ward structure was not the issue in this appeal. For Abella J., the issue was whether the timing mid-way through a municipal election was in violation of s. 2(b) of the Charter.
The minority disagreed that Baier was the appropriate framework to apply to the s. 2(b) analysis. Per Abella J., the Baier framework was designed to address underinclusive statutory regimes and had no relevance to the legal or factual issues in this case. Baier only applies to claims placing an obligation on the government to provide individuals with a particular platform for expression.
Additionally, the minority described the distinction between positive and negative rights as an unhelpful lens for adjudicating Charter claims. During nearly four decades of Charter litigation, this Court has recognized that rights and freedoms have both positive and negative dimensions.That recognition has led the Court to adopt a unified purposive approach to rights claims, whether the claim is about freedom from government interference in order to exercise a right or the right to governmental action in order to get access to it.
In the minority’s view, the s. 2(b) claim, in this case, was about government interference with the expressive rights that attach to an electoral process. What should be applied instead of Baier is the foundational framework in Irwin Toy Ltd v Quebec (Attorney General), 1989 CanLII 87 (SCC),  1 SCR 927 (“Irwin Toy”), which simply asks whether the activity in question falls within the scope of s. 2(b) and whether the government action, in purpose or effect, interfered with that expressive activity.
The minority identified the “activity” at the heart of this appeal as the expression of political views and the reciprocal political discourse among electoral participants during an election period, which engages the rights of both those seeking election and those deciding whom to elect. Political discourse undoubtedly has expressive content, and therefore, prima facie falls within the scope of the guarantee.
With respect to the second part of the Irwin Toy test, the minority found that the effect of the legislation — redrawing the ward boundaries and cutting the number of wards nearly in half mid-election — was to interfere with these expressive activities. The timing of the Act, in the middle of an ongoing election, breathed instability into the 2018 municipal election, undermining the ability of candidates and voters in their wards to meaningfully discuss and inform one another of their views on matters of local concern.In the electoral context, freedom of expression involves the rights of both candidates and voters to reciprocal deliberative engagement. The right to disseminate and receive information connected with elections has long been recognized as integral to the democratic principles underlying freedom of expression, and as a result, has attracted robust. Abella J. held that state interference with individual and collective political expression in the context of an election strikes at the heart of the democratic values that freedom of expression seeks to protect, including participation in social and political decision-making. The Act, therefore, breached the appellants’ s. 2(b) rights.
Turning to s. 1 of the Charter, the minority noted that Ontario offered no explanation, let alone a pressing and substantial one, for why the changes were made in the middle of an ongoing election. There was no hint of urgency, nor any overwhelming immediate policy need. The minority held that in the absence of any evidence or explanation for the timing of the Act, no pressing and substantial objective existed for this limitation and it could not, therefore, be justified in a free and democratic society. The legislation was, as a result, an unjustified breach of s. 2(b).
With respect to unwritten constitutional principles, the minority disagreed that unwritten constitutional principles are, as the majority suggested, merely “context” or “backdrop” to the text. On the contrary, unwritten principles are our Constitution’s most basic normative commitments from which specific textual provisions derive. The specific written provisions are elaborations of the underlying, unwritten, and organizing principles found in the preamble to the Constitution Act, 1867.Constitutional text emanates from underlying principles, but it will not always be exhaustive of those principles. Apart from written provisions of the Constitution, principles deriving from the Constitution’s basic structure may constrain government action.
Unwritten constitutional principles exist independently of and, as in the case of implied fundamental rights before the promulgation of the Charter, prior to the enactment of express constitutional provisions. This leads inescapably to the conclusion that unwritten principles may be used to invalidate legislation if a case arises where legislation elides the reach of any express constitutional provision but is fundamentally at odds with our Constitution’s “internal architecture” or “basic constitutional structure”. This would undoubtedly be a rare case.Unwritten constitutional principles do not only “give meaning and effect to constitutional text” and inform “the language chosen to articulate the specific right or freedom”, but they also assist in developing an evolutionary understanding of the rights and freedoms guaranteed in our Constitution, which this Court has long described as “a living tree capable of growth and expansion”.Unwritten constitutional principles are a key part of what makes the tree grow. This Court has never held that the interpretive role of unwritten constitutional principles is narrowly constrained by textualism.
The minority would have granted the appeal.