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DIVISION OF POWERS - Provincial jurisdiction - Provincial powers (Constitution Act, 1867, s. 92) - Municipal institutions

Friday, October 01, 2021 @ 4:28 PM  

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Appeal by the City of Toronto from a judgment of the Ontario Court of Appeal that held that the Better Local Government Act, 2018, was constitutional. During the City of Toronto’s municipal election campaign, the Province of Ontario enacted the Better Local Government Act, 2018, which reduced the size of Toronto City Council from 47 wards to 25. The City challenged the constitutionality of the legislation and applied for orders restoring the 47-ward structure. The application judge found the Act limited municipal candidates’ right to freedom of expression and municipal voters’ right to effective representation under s. 2(b) of the Charter. He found the limits could not be justified under s. 1 of the Charter and set aside the impugned provisions of the Act. The Court of Appeal granted a stay of the judgment. The municipal election proceeded on the basis of the 25-ward structure established by the Act. The Court of Appeal subsequently allowed Ontario’s appeal, finding no limit on freedom of expression.

HELD: Appeal dismissed. The Province had acted constitutionally. The City was advancing a positive rights claim, to which the framework established in Baier v. Alberta applied. The Baier framework set an elevated threshold for positive claims, requiring “substantial interference” with freedom of expression. The applicable factors could usefully be distilled to a single core question: was 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 had either substantially interfered with freedom of expression, or had the purpose of interfering with freedom of expression? The City had failed to demonstrate a substantial interference with freedom of expression. The change in ward structure did not prevent electoral participants from engaging in further political expression on election issues under the new ward structure. The Act imposed no limit on freedom of expression and did not violate s. 2(b) of the Charter. Despite their value as interpretive aids, unwritten constitutional principles could not be used as a basis for invalidating legislation. There was no freestanding right to effective representation outside s. 3 of the Charter. The unwritten constitutional principle of democracy could not 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. Dissenting reasons were provided.

Toronto (City) v. Ontario (Attorney General), [2021] S.C.J. No. 34, Supreme Court of Canada, R. Wagner C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, S. Côté, R. Brown, M. Rowe, S.L. Martin and N. Kasirer JJ., October 1, 2021. Digest No. TLD-September272021011-SCC