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CANADIAN CHARTER OF RIGHTS AND FREEDOMS - Fundamental freedoms - Freedom of expression

Wednesday, October 30, 2019 @ 8:27 AM  

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Appeal by the Attorney General of Ontario from a decision of an application judge declaring the provisions in the Better Local Government Act reducing the number of City wards from 47 to 25 to be of no force and effect and contrary to s. 2(b) of the Charter. The Act came into force shortly before the 2018 municipal election. The Act changed the composition of the Toronto City Council by reducing the number of wards in the City of Toronto, reducing the number of councillors, and changing the ward boundaries. These changes disrupted campaigning and the candidates’ expectations. The application judge concluded that changing the number and size of the electoral wards after campaigning had begun interfered with the candidates’ ability to campaign. The application judge found this to be unfair to the candidates, who found themselves in a suddenly altered electoral landscape. The application judge found that the Act limited the voters’ freedom of expression by increasing ward population size from an average of 61,000 to 111,000, effectively denying the voter’s right to cast a vote that could result in effective representation. The application judge held that the limits on freedom of expression he identified were not reasonable and could not be justified under s. 1 of the Charter. He found that the Act could not pass even the first branch of the Oakes test as there was no evidence that the objectives of the Act were sufficiently pressing and substantial to justify taking effect in the middle of an election campaign.

HELD: Appeal allowed. The Act was constitutional. The application judge’s interpretation of s. 2(b) of the Charter exceeded the bounds of legitimate interpretation and amounted to a re-authoring of that provision. The application judge departed from the text and its underlying purpose and misconstrued the meaning of s. 2(b) by extending s. 2(b) to guarantee that government action would not render anyone’s expression less effective and by subsuming a separate Charter right, the right to vote, within the freedom of expression. Section 2(b) did not guarantee that expression would retain its value. The purpose of s. 2(b) was to prevent interference by government with expression. Government was not required to take any positive steps to provide or maintain particular platforms to enable anyone’s expression. The candidates advanced a positive claim that Ontario maintain a 47-ward election once the election period began. The City, however, could not meet the exceptional criteria required to advance a positive rights claim. The claimants were not prevented from exercising their freedom of expression. The application judge’s analysis wrongly imported the content of s. 3 of the Charter into s. 2(b) to circumvent the decision of the constitutional framers not to extend the protection of s. 3 to municipal elections. Unwritten constitutional principles did not invest the judiciary with a free-standing power to invalidate legislation. They could not be invoked to invalidate the Act.

Toronto (City) v. Ontario (Attorney General), [2019] O.J. No. 4741, Ontario Court of Appeal, J.C. MacPherson, M.H. Tulloch, B. Miller, I.V.B. Nordheimer and A.L. Harvison Young JJ.A., September 19, 2019. Digest No. TLD-October282019009