Not trampling on rights
On July 30, 2018, the newly elected Ford government introduced legislation reducing the size of Toronto City Council from 47 to 25 councillors. Bill 5 was enacted in haste on August 14, 2018, about two weeks later. Radical change, implemented with little warning and no consultation, would be controversial at the best of times. But Bill 5, the Better Local Government Act (“BLG Act”), bisected a municipal election that began on May 1st and was building toward Election Day on October 22, 2018. The government announced its plan to reconstitute City Council on July 27th – the day nominations for the election closed. At that time, 509 candidates in 47 wards were registered.
Restructuring City Council in the midst of a municipal election was inherently disruptive, and hardly inadvertent. To the contrary, it was clear the premier carried grudges against City Council. He defended restructuring in the name of efficiency and cost-cutting, complaining that “nothing was done” during his days on Council. The premier spoke dismissively of numerous 10-hour debates on “getting Mrs. Jones’ cat out of the tree,” and maintained that the province’s mid-election, game-changing legislation did not trample on anyone’s rights.
City Council was transformed by the BLG Act, and so was the 2018 municipal election, which proceeded with almost half as many wards and re-defined boundaries. On its face, the legislation was unfair and – at least as to timing – wrong in principle. Whether it was open to constitutional challenge was another matter.
The provinces have exclusive jurisdiction over municipal institutions, and though it was weakly ventured that the federal government could revive its obsolete power of disallowance, that would at least have been illegitimate, if not plainly unconstitutional. Municipalities do not count under the Charter of Rights and Freedom’s democratic rights (s.3), and other constitutional options were not promising. That left s.2(b)’s guarantee of expressive freedom as the mainstay of a challenge.
In the urgent circumstances of salvaging an electoral process, two discrete claims were conflated. One is whether the restructuring of Toronto City Council was unconstitutional, and the other is whether the restructuring legislation unconstitutionally interfered with an electoral process that was underway. While the first claim could not succeed, the second should not have failed.
Less than one month after its enactment, Justice Belobaba pronounced the BLG Act unconstitutional, thereby restoring the 47-ward Council and pre-existing electoral process. The judge was emphatic, muttering “crickets” to explain how unimpressed he was by the government’s attempt to justify the Act. As the election clock ticked, events moved quickly. With the province instructing counsel to advise the Court that the s.33 override would be invoked if the government lost again, the Ontario Court of Appeal granted a stay of the Belobaba decision. That forestalled the override and the municipal election proceeded under the BLG Act’s 25-ward configuration.
In fall 2019, the Ontario Court of Appeal reversed Justice Belobaba, upholding the restructuring of City Council and finding no violation of s.2(b)’s guarantee of freedom of expression. On March 26, 2020, the Supreme Court granted the City of Toronto leave to appeal that decision.
To have any chance of succeeding, the s.2(b) claim must be re-framed at the Supreme Court appeal. Otherwise, the risk is that the province’s subversion of an ongoing democratic process could go unanswered and unremedied. Some complications must be acknowledged. One is that the City of Toronto is the putative appellant, but has no self-evident s.2(b) claim of its own. Though it is unclear what happened, other litigants whose expressive freedom was directly affected reportedly “settled” their claims. There, an opportunity to build an argument for Charter damages might have been lost.
The Court is likely to bridge that gap and recognize the City’s standing to mount the appeal. Also in play are rule-of-law considerations that are intolerant of unconstitutionality, even where the parties most affected are not represented in the proceedings. Intervenors will assist, but cannot make much difference because their role in written and oral and written argument is so limited. In combination, these dynamics may weaken the claim.
More to the point, it is critical at the next level to shift the focus away from restructuring and the constitutionality of the BLG Act. That was how the litigation set up in the moment, when the immediate goal was to restore an electoral process that was more than midway to Election Day. More than two years later, invalidating the BLG Act is even less plausible as a form of relief than it was then. The remedy that aligns with the violation of s.2(b) and is imperative in these circumstances is a declaration that the province acted unconstitutionally by unjustifiably interfering in a municipal election that was in progress.
Setting s.2(b) aright
Invalidating the BLG Act under s.2(b) of the Charter was a long shot that set the s.2(b) analysis up to fail. The legislation could not be struck down and the pre-existing Council restored without essentially claiming a right to the status quo ante (i.e., a 47-ward Council). Targeting the BLG Act and its changes to Council led to a conceptualization of the claim as a positive right. That, in turn, engaged Baier v. Alberta’s inscrutable doctrine of “access to a statutory platform.”
In principle, the s.2(b) claim is negative, not positive, because it rests on freedom from government interference in an ongoing electoral process. The s.2(b) issue is non-interference in an apex event of local democracy, not any positive entitlement to a specified number of city councillors.
At a minimum, the Baier concept of “statutory platforms” – a right to the preservation of a 47-ward Council – was inapplicable. The BLG Act did not fit that model by excluding some s.2(b) rights and permitting others. Baier’s “platform” analysis is anomalous, and the Court has been reluctant to extend the concept beyond questions of underinclusion. More to the point, Baier is of questionable authority, and the Court should be encouraged to say so when it hears the appeal.
The government’s interference with an electoral process was patently a violation of s.2(b). The uncontested rule of s.2(b) doctrine is that any interference with expressive freedom violates s.2(b) and must be justified under s.1 of the Charter. The BLG Act’s direct interference with the election campaign satisfies both branches of Irwin Toy’s purpose-effect test. On its face, the BLG Act was purposely timed to interfere with an election process, and its effects were drastic. This is a stand-alone breach of s.2(b) of the Charter, separate and apart from any substantive question of restructuring.
The BLG Act pitched a duly regulated campaign process into a state of confusion and disorder, interfering with a panoply of s.2(b) rights that were actively engaged. While some candidates and campaigns became functus, others had to re-configure an existing campaign to fit new boundaries, geography and demographics, responding in some or many cases to a new field of opponents. The expressive activities of candidates, as well as their campaign teams, were frustrated. Meanwhile, the electorate’s s.2(b) rights of participation were also thrown into confusion by the sudden transformation of the core foundations of the electoral process.
The province may be able to regulate municipal councils with impunity, subject only to accountability at the next election. But the province cannot violate expressive freedom with impunity, and is accountable under s.2(b) of the Charter. Well aware of that, the province threatened to use the Charter override should it lose in the courts.
A more developed analysis is in preparation and will be posted in advance of the Supreme Court appeal. For the moment, the key takeaways are these. First, the s.2(b) claim at this stage is about the election campaign, and not the restructuring of City Council. Second, there can be no doubt that the government’s interference with campaign expressive activities – both individual and collective – violated s.2(b) of the Charter. Third, the positive rights analysis and reliance on Baier were misguided and must be discouraged at the Supreme Court. Fourth, “substantial interference” – a threshold imported from the s.2(d) jurisprudence on labour union claims – is foreign to s.2(b) and should not have applied in this instance. Fifth, if the “crickets” analysis was irreverent, it pointed up the province’s inability to justify its interference with an election process.
Finally, the remedy that is requested must align with the constitutional violation. In hindsight, a claim for Charter damages might have been one alternative but was not pursued. Now that the election is long since over and a new structure for Council is in place, the appropriate remedy is a declaration that the BLG Act unconstitutionally violated s.2(b) of the Charter when it was enacted during an election campaign.
 Quoted in City of Toronto, infra, para. 67 (Mrs. Jones’s cat); quoting Doug Ford, “we didn’t trample on anyone’s rights”.
 Para. 77. Crickets means absolute silence or no communication and is likely distilled from “in silence, only the crickets are heard”.
 In addition, the Ontario judges improperly applied the “substantial interference” test. This is not the standard for breach of s.2(b) and must be corrected by the Court.
 Unwritten constitutional principles were argued and rejected by the OCA.