On October 1, 2021, the Supreme Court of Canada released its much anticipated decision in Toronto (City) v Ontario (Attorney General), 2021 SCC 34. The Court was tasked with determining whether the Government of Ontario's legislation reducing the size of Toronto's City Council in the midst of the municipal election was constitutionally valid. In a 5-4 decision, the Supreme Court upheld the Government of Ontario's legislation and found that it was constitutionally valid. The decision is a significant — if narrow — victory for a disciplined approach to Charter interpretation and defeat for unwritten constitutional principles.
What happened?
On May 1, 2018, the City of Toronto's municipal election campaign began, with over 500 candidates registering to run in 47 wards by the July 27 deadline that year. The day of the deadline, the Government of Ontario announced that it would introduce legislation reducing Toronto City Counsel from 47 wards to 25 wards. This legislation in question, Better Local Government Act, 2018, S.O. 2018, c. 11, came into force on August 14, 2018. The candidate registration deadline was extended until September 14, 2018 and the election took place on the day initially set, October 22, 2018.1
Ontario Superior Court of Justice Decision
Prior to election day, the City of Toronto submitted an application on an urgent basis to the Ontario Superior Court of Justice, arguing that the legislation violated the freedom of expression of candidates and voters, contrary to section 2(b) of the Canadian Charter of Rights and Freedoms. The city also argued the law violated certain unwritten constitutional principles, such as the principle of democracy. The Ontario Superior Court found in favour of the City.2
Ontario Court of Appeal Decision
The Attorney General of Ontario appealed the decision and moved for a stay of the lower court's decision pending appeal. A stay was granted and the election proceeded with 25, rather than 47, wards.3 The Court of Appeal later set aside the finding of the lower court and found in favour of the Government of Ontario on the basis that the application judge had improperly applied the tests for s. 2(b) and s 3 of the Charter.4
The Court of Appeal held, in a 3-2 split decision, that Section 2(b) of the Charter of Rights and Freedoms, which protects the freedom of expression, does not "guarantee that government action will not render anyone's expression less effective", and does not extend the right to vote (which Section 3 of the Charter guarantees for federal and provincial elections) to municipal elections. The Court of Appeal was unanimous that the provincial law could not be struck down on the basis of "unwritten constitutional principles".
Supreme Court of Canada Decision
The City of Toronto appealed the Court of Appeal's decision to the Supreme Court of Canada. It argued that the province's legislation was an unconstitutional limit of s. 2(b) Charter rights and a violation of the unwritten constitutional principle of democracy. It furthermore argued that the legislation also violated the constitutional requirement of effective representation, which flows from the aforementioned principle of democracy.5
On October 1, 2021, the Supreme Court of Canada, in a 5-4 decision, dismissed the City of Toronto's appeal finding that Ontario's legislation was constitutionally valid and did not violate section 2(b) of the Charter.
Wagner C.J. and Brown J., writing for the majority, concluded that Ontario's legislation imposed no limit on freedom of expression. The majority explained that candidates and their supporters had adequate time to re-orient their messages and freely express themselves according to the new ward structure. Neither the rights of the candidates nor voters were so radically frustrated so as to effectively preclude meaningful expression.
The majority also rejected the City of Toronto's argument that the legislation's provisions infringed upon "effective representation" under s. 3 of the Charter. The Majority clarified that effective representation is not a principle of s. 2(b) of the Charter, nor can the concept be imported wholesale into s. 2(b). Section 3 and its requirement of effective representation only apply to provincial and federal elections – not municipal elections.
Finally, the Majority found that unwritten constitutional principles, such as democracy, cannot be used as a device for invalidating legislation, nor can they be used to narrow provincial authority under s. 92(8) of the Constitution Act, 1867, or to read municipalities into s. 3 of the Charter.
The dissenting opinion, written by Justice Abella, did not characterize the case as a question of provincial authority over municipal elections in general. Rather it framed the case as being a question of provincial authority to change municipal wards in the middle of a municipal election. The Government of Ontario choosing to do so, according to the dissent, had the effect of "destabilizing the foundations of the electoral process and interfering with the ability of candidates and voters to engage in meaningful political discourse during the period leading up to voting day."6
The dissent also took an opposite approach to unwritten constitutional principles, finding that they have full legal force and may function as independent bases upon which to invalidate legislation. The dissent explained that the specific written provisions of the Constitution are elaborations of the underlying, unwritten, and organizing principles found in the preamble to the Constitution. Constitutional text emanates from underlying principles, but it will not always be exhaustive of those principles.
Key Takeaways
Here are our key takeaways from this decision:
- Constitutional interpretation must put the text
first. The majority confirmed that the Charter must be
interpreted purposively. "A purposive interpretation of
Charter rights must begin with, and be rooted in, the text... and
not overshoot the purpose of the right but place it in its
appropriate linguistic, philosophic and historical
contexts".7
- The Court provided clarity on the status of
municipalities under the Constitution. The majority
confirmed that subject to the Charter, a province, under
s. 92(8) of the Constitution Act, 1867, has absolute
and unfettered legal power to legislate with respect to
municipalities. A province has "absolute and unfettered legal
power to do with them as it wills".8 Likewise, the majority
found that section 3 of the Charter, which sets out the
"right to vote in an election" applies only to provincial
and federal elections – not municipal elections. The absence
of municipalities in the constitutional text is not a gap to be
addressed judicially; rather, it is a deliberate omission.9
- The Baier test applies to all positive claims,
not simply claims involving underinclusive statutory
regimes. One of the central questions of the case was
which of the following tests applied in the circumstances: the test
from Baier v Alberta, 2007 SCC 31 or the test from
Irwin Toy Ltd v Quebec (Attorney General), 1989 CanLII 87
(SCC). The majority confirmed that the Baier test applies
to all positive claims, not simply claims involving underinclusive
statutory regimes. Positive claims require
government action to facilitate expression. A negative claim is
where the claimant seeks freedom from government legislation or
action suppressing an expressive activity in which people would
otherwise be free to engage.
- The Court simplified the test for positive claims. The Baier test sets out the following three factors:
- Is the claim grounded in freedom of expression, rather than in access to a particular statutory regime?
- Has the claimant demonstrated that lack of access to a statutory regime has the effect of a substantial interference with freedom of expression, or has the purpose of infringing freedom of expression?
- Is the government responsible for the inability to exercise the fundamental freedom?"10
The majority distilled these factors into a single 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?
- Finding a breach in the context of a positive claim
will only occur in extreme and rare cases. Part of the
test for a positive claim under either the Baier framework
or the Majority's simplified question is that there has been
substantial interference. Substantial interference with freedom of
expression occurs where lack of access to a statutory platform has
the effect of radically frustrating expression to such an extent
that meaningful expression is effectively precluded. The majority
recognized that "while meaningful expression need not be
rendered absolutely impossible, effective preclusion represents an
exceedingly high bar that would be met only in extreme and rare
cases."
- Unwritten constitutional principles can never be
independent grounds for invalidating legislation.
According to the majority decision, unwritten constitutional
principles are part of the law of the Constitution, in the sense
that they form part of the context and backdrop to the
Constitution's written terms. Unwritten constitutional
principles are not "provisions of the Constitution".
Their legal force lies in their representation of general
principles within which the constitutional order operates and,
therefore, by which the Constitution's written terms —
its provisions — are to be given effect.
- Unwritten constitutional principles may only assist courts in two ways. First, where the constitutional text is not itself sufficiently definitive or comprehensive to furnish the answer to a constitutional question, a court may use unwritten constitutional principles as interpretive aids. Secondly, and relatedly, unwritten principles 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. These "structural doctrines can fill gaps and address important questions on which the text of the Constitution is silent."11
What's next?
City of Toronto makes clear that municipal governments have no independent constitutional status. They are the creation of and therefore at the legislative mercy of the provincial government. As municipalities continue to grow in size and influence, the rights or lack thereof, available to them will continue to be an increasingly important legal issue.
The divide in City of Toronto between the majority and the dissent also indicates that there will be further debate on the distinction between positive and negative rights. As the Court recognized, the appropriate characterization of a claim between a negative and positive claim is "central" to determining whether the right was violated. Whether a claim is characterized as a positive or negative claim will determine whether the Courts will apply the higher bar of the Baier framework or the broader Irwin Toy test. While the Irwin Toy test will continue to apply to most s. 2(b) cases, as was demonstrated in this case, this characterization can be the deciding factor in ultimately determining whether a right has been violated.
While the majority's decision is and will continue to be the law in Canada, the strong diametrically opposed dissent on the issue of unwritten constitutional principles indicates that the courts are certainly not finished with this debate. The dissenting opinion almost entirely disagreed with the majority's limitation on the use of unwritten constitutional principles. It stated that these principles have independent existence from the express provisions of the Constitution and "may be used to invalidate legislation" in cases where the expression provisions of the Constitution are not violated but government action or inaction is nonetheless "fundamentally at odds with our Constitution's 'internal architecture' or 'basic constitutional structure'".12 Time will tell how much influence the dissent's opinion will have on future cases concerning unwritten constitutional principles.
Case Information
Toronto (City) v Ontario (Attorney General), 2021 SCC 34
Docket: 38921
Date of Decision: October 1, 2021
Adam Goldenberg and Jacob Klugsberg acted for the Canadian Constitution Foundation as an intervener in the City of Toronto appeal at both the Ontario Court of Appeal and the Supreme Court of Canada.
Footnotes
1. Toronto (City) v Ontario (Attorney General), 2021 SCC 34 at paras 1-2 [City of Toronto]
2. City of Toronto et at v Ontario (Attorney General), 2018 ONSC 5151
3. City of Toronto at para 10.
4. City of Toronto at para 11.
5. City of Toronto at para 3.
6. City of Toronto at paras 89, 123.
7. City of Toronto at para 14.
8. City of Toronto at para 2.
9. City of Toronto at para. 81.
10. City of Toronto at para 23.
11. City of Toronto at para 56.
12. City of Toronto at para 170.
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