Columnists
Three Takeaways
At the end of last week, the Supreme Court of Canada issued its decision in the appeal against Doug Ford’s 2018 downsizing of Toronto city council.
The move was made by Mr. Ford after the candidates for 47 seats on the council had already begun their campaigns. Fortyseven wards became 25 wards; and people had to abandon their campaigns and decide whether to run in new, larger wards with different boundaries. Toronto had previously chosen its own seat numbers and ward boundaries from a number of alternatives in a consultative process. Mr. Ford, however, vowed to impose his plan on the City and 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 temporarily stopped by a judge who found that the Ford plan violated the freedom of expression right in the Charter. However, the Ontario Court of Appeal gave the plan the go-ahead, and subsequently found that it did not violate the Charter. The election went ahead on Mr. Ford’s terms, but the City of Toronto decided to appeal to the Supreme Court of Canada anyway.
The Supreme Court ruled in Mr. Ford’s favour, in 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 a citizens’ vote. This is the province’s prerogative.
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.
The majority said that 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.” But no more than that. (There was a 69-day horizon in the case of Toronto).
The minority, on the other hand, determined that 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 the Charter’s 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 minority used the constitution creatively to get around its limitation on the protection of voting rights to the federal and provincial legislatures, taking into account the importance of municipal elections to voters and the overarching protection that freedom of expression guaranteed by the Charter ought to provide. But the mere fact that 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; but 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.
So 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. And that’s a takeaway from Toronto
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