Three Takeaways
David Simmonds

Recently, the Supreme Court of Canada issued its decision in the appeal against the attempted downsizing of Toronto city council, in 2018, by Rob Ford, now premier of Ontario.  The move was made by Ford after the candidates for forty-seven seats on the council had begun their campaigns.  Forty-seven wards became twenty-five wards; people had to abandon their campaigns and decide whether to run in new, larger wards with different boundaries.

Toronto once controlled its council size.

Toronto previously chose its own seat numbers and ward boundaries from several alternatives, in a consultative process.  Ford, however, vowed to impose his plan on the Toronto. He dared the courts to stop him, saying he would invoke the “notwithstanding” clause in the Canadian Charter of Rights and Freedoms if they attempted to do so.

He was temporally stopped by a Judge who found the Ford plan violated the freedom of expression right in the Charter. The Ontario Court of Appeal gave the plan permission and, subsequently, found it did not violate the Charter.  The election went ahead on terms laid out by Ford.

The City of Toronto decided to appeal to the Supreme Court of Canada anyway. The Supreme Court ruled in favour of Ford. It was a close 5-4 decision. 

I have three takeaways from the decision. The first is that the Court reaffirmed the weak constitutional standing of municipalities.  They exist entirely at the pleasure of provincial governments.  Even the right to vote in municipal elections is not directly protected by the Charter.

It is quite possible that, some future provincial government will decide to merge Prince Edward County with Belleville, without citizens voting.  This is the provincial prerogative. Thus, it could happen.

The second takeaway is incredulity at how much our constitution is still undefined.  One hundred and fifty plus years after the passage of the British North America Act and forty years after the passage of the Charter, we have a constitution that is a mixture of written rules and unwritten norms that can’t tell us exactly what it means to live in a “democracy” or how persuasive those unwritten norms should be.  A nation finds it difficult to shred the notion of rule by convention.

Standard of interference.

The Court majority said the Ford plan did not rise to the standard of interference with the Charter right to freedom of expression. “In our view a 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 preclude[d]’….While meaningful expression need not be rendered absolutely impossible, we stress that effective preclusion represents an exceedingly high bar that would be met only in extreme and rare cases… For example, a statutory reduction of the length of an election campaign to two days may well, as a practical matter, be shown to have the effect of constituting a substantial interference with freedom of expression. In such a case, meaningful expression may very well be found to be effectively precluded.”  No more than that, but there was a 69-day horizon in the case of Toronto. 

The Court minority, on the other hand, determined the collective effect of the Ford plan, forcing candidates to abandon campaigns and requiring them to make new expenditures as well as confusing voters, was enough to justify the invocation of Charter protection of freedom of expression. “When a democratic election takes place in Canada, including a municipal election, freedom of expression protects the rights of candidates and voters to meaningfully express their views and engage in reciprocal political discourse on the path to voting day. That is at the core of political expression, which in turn is at the core of what is protected by the Charter.   When the state enacts legislation that has the effect of destabilizing the opportunity for meaningful reciprocal discourse, it is enacting legislation that interferes with the Constitution.”

The Court minority used the constitution creatively to get around its limitation on the protection of voting rights to the federal and provincial legislatures, considering the importance of municipal elections to voters and the overarching protection that freedom of expression guaranteed by the Charter ought to provide. The mere fact the application of the Charter to municipal elections has heretofore been unsettled is startling.  

The third takeaway is the lack of unanimity in the Court.  Split decisions are not unusual, given that predicting the outcome of a dispute that reaches the Court in the first place has usually already bedevilled the litigants and lower courts. Yet, this decision had four justices making a liberal application of the Charter-guaranteed right of freedom of expression and five justices willing to apply the protection to a municipal election only in the most egregious circumstances. 

The take-a-ways.

Which is it going to be in the future?  Liberal interpreters will not give up their cause on the strength of a 5-4 loss. Nor can we predict that the same split will occur in future decisions.  All we know for sure is that Mr. Ford got his way. That’s a takeaway from Toronto.