Toronto (City) v. Ontario (Attorney General), 2018 ONCA 7612021 SCC 34 (38921)

“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 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. The majority held that the City had advanced a positive rights claim, which was not properly grounded in s. 2 (b) of the Charter, and concluded that the application judge had erred in finding that the Act substantially interfered with the candidates’ freedom of expression and in finding that the right to effective representation applies to municipal elections and bears any influence over the s. 2 (b) analysis. The majority also held that unwritten constitutional principles do not confer upon the judiciary power to invalidate legislation that does not otherwise infringe the Charter, nor do they limit provincial legislative authority over municipal institutions.”

The SCC (5:4) dismissed the appeal.

The Chief Justice and Justice Brown wrote as follows (at paras. 1, 3-5, 18, 53, 60, 63, 84):

“While cast as a claim of right under s. 2 (b) of the Canadian Charter of Rights and Freedoms , 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.

Aside from one reference to s. 92(8)  — and an acknowledgement that the Province of Ontario had constitutional authority to act as it did in this case — our colleague Abella J. all but ignores this decisive constitutional context (para. 112). And yet, these considerations loom large here. After the closing of a nomination period for elections to the Toronto City Council, the Province legislated a new, reduced ward structure for the City of Toronto and a correspondingly reduced Council. The City says that doing so was unconstitutional, because it limited the s. 2 (b) Charter  rights of electoral participants and violated the unwritten constitutional principle of democracy. It also, says the City, ran afoul of the constitutional requirements of effective representation, which it says flow from s. 2 (b) of the Charter  and s. 92(8)  of the Constitution Act, 1867  by virtue of that same unwritten constitutional principle of democracy.

None of these arguments have merit, and we would dismiss the City’s appeal. In our view, the Province acted constitutionally. As to the s. 2 (b) claim, the City seeks access to a statutory platform which must be considered under the framework stated in Baier. The change to the ward structure did not prevent electoral participants from engaging in further political expression on election issues under the new ward structure in the 69 days between the Act coming into force and the election day. There was no substantial interference with the claimants’ freedom of expression and thus no limitation of s. 2 (b).

Nor did the Act otherwise violate the Constitution. Unwritten constitutional principles cannot in themselves ground a declaration of invalidity under s. 52(1)  of the Constitution Act, 1982 , and there is no freestanding right to effective representation outside s. 3  of the Charter . Further, the unwritten constitutional principle of democracy cannot be used to narrow provincial authority under s. 92(8), or to read municipalities into s. 3.

Central to whether s. 2(b) was limited by the Province here is, therefore, the appropriate characterization of the claim as between a negative and positive claim of right. In Baier, this Court shielded positive claims from the Irwin Toy framework and subjected them to an elevated threshold. This is necessary, given the ease with which claimants can typically show a limit to free expression under the Irwin Toy test. 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. To consider positive claims under Irwin Toy would be to force the government to justify, under s. 1 , any decisions not to provide particular statutory platforms for expression.

To explain, federalism is fully enshrined in the structure of our Constitution, because it is enshrined in the text that is constitutive thereof ⸺ particularly, but not exclusively, in ss. 91  and 92  of the Constitution Act1867 . 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.

We add this. Were a court to rely on unwritten constitutional principles, in whole or in part, to invalidate legislation, the consequences of this judicial error would be of particular significance given two provisions of our Charter . First, s. 33 preserves a limited right of legislative override. Where, therefore, a court invalidates legislation using s. 2 (b) of the Charter , the legislature may give continued effect to its understanding of what the Constitution requires by invoking s. 33  and by meeting its stated conditions (D. Newman, “Canada’s Notwithstanding Clause, Dialogue, and Constitutional Identities”, in G. Sigalet, G. Webber and R. Dixon, eds., Constitutional Dialogue: Rights, Democracy, Institutions (2019), 209, at p. 232). Were, however, a court to rely not on s. 2 (b) but instead upon an unwritten constitutional principle to invalidate legislation, this undeniable aspect of the constitutional bargain would effectively be undone, since s. 33 applies to permit legislation to operate “notwithstanding a provision included in section 2  or sections 7  to 15 ” only. Secondly, s. 1 provides a basis for the state to justify limits on “the rights and freedoms set out” in the Charter . Unwritten constitutional principles, being unwritten, are not “set out” in the Charter . To find, therefore, that they can ground a constitutional violation would afford the state no corresponding justificatory mechanism.

In sum, and contrary to the submissions of the City, unwritten constitutional principles cannot serve as bases for invalidating legislation. A careful review of the Court’s jurisprudence supports this conclusion.

In short, and despite their value as interpretive aids, unwritten constitutional principles cannot be used as bases for invalidating legislation, nor can they be applied to support recognizing a right to democratic municipal elections by narrowing the grant to provinces of law‑making power over municipal institutions in s. 92(8)  of the Constitution Act, 1867 . Nor can they be applied to judicially amend the text of s. 3  of the Charter  to require municipal elections or particular forms thereof. The text of our Constitution makes clear that municipal institutions lack constitutional status, leaving no open question of constitutional interpretation to be addressed and, accordingly, no role to be played by the unwritten principles.”