Toronto (City) v. Ontario (Attorney General)

Toronto (City) v. Ontario (Attorney General)
Collection
Supreme Court Judgments
Date
2021-10-01
Neutral citation
2021 SCC 34
Report
[2021] 2 SCR 845
Case number
38921
Judges
Wagner, Richard; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas
On appeal from
Ontario
Subjects
Constitutional law
Notes
Case in Brief SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: Toronto (City) v. Ontario (Attorney General), 2021 SCC 34, [2021] 2 S.C.R. 845
Appeal Heard: March 16, 2021 Judgment Rendered: October 1, 2021 Docket: 38921
Between:
City of Toronto Appellant
and
Attorney General of Ontario Respondent
- and -
Attorney General of Canada, Attorney General of British Columbia, Toronto District School Board, Cityplace Residents’ Association, Canadian Constitution Foundation, International Commission of Jurists (Canada), Federation of Canadian Municipalities, Durham Community Legal Clinic, Centre for Free Expression at Ryerson University, Canadian Civil Liberties Association, Art Eggleton, Barbara Hall, David Miller, John Sewell, David Asper Centre for Constitutional Rights, Progress Toronto, Métis Nation of Ontario, Métis Nation of Alberta and Fair Voting British Columbia Interveners
Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.
Joint Reasons for Judgment: (paras. 1 to 85)
Wagner C.J. and Brown J. (Moldaver, Côté and Rowe JJ. concurring)
Dissenting Reasons: (paras. 86 to 186)
Abella J. (Karakatsanis, Martin and Kasirer JJ. concurring)
City of Toronto Appellant
v.
Attorney General of Ontario Respondent
and
Attorney General of Canada,
Attorney General of British Columbia,
Toronto District School Board,
Cityplace Residents’ Association,
Canadian Constitution Foundation,
International Commission of Jurists (Canada),
Federation of Canadian Municipalities,
Durham Community Legal Clinic,
Centre for Free Expression at Ryerson University,
Canadian Civil Liberties Association,
Art Eggleton,
Barbara Hall,
David Miller,
John Sewell,
David Asper Centre for Constitutional Rights,
Progress Toronto,
Métis Nation of Ontario,
Métis Nation of Alberta and
Fair Voting British Columbia Interveners
Indexed as: Toronto (City) v. Ontario (Attorney General)
2021 SCC 34
File No.: 38921.
2021: March 16; 2021: October 1.
Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.
on appeal from the court of appeal for ontario
Constitutional law — Charter of Rights — Freedom of expression —Municipal elections — Province enacting legislation redrawing municipality’s electoral ward boundaries and reducing number of wards during election campaign — Whether legislation limits electoral participants’ right to freedom of expression and, if so, whether limitation justified — Canadian Charter of Rights and Freedoms, ss. 1, 2(b) — Better Local Government Act, 2018, S.O. 2018, c. 11.
Constitutional law — Unwritten constitutional principles — Democracy — Province enacting legislation redrawing municipality’s electoral ward boundaries and reducing number of wards during election campaign — Whether legislation unconstitutional for violating unwritten constitutional principle of democracy.
On May 1, 2018, the City of Toronto municipal election campaign commenced and nominations opened in preparation for an election day on October 22, 2018. On July 27, 2018, the closing day for nominations, Ontario announced its intention to introduce legislation reducing the size of Toronto City Council. On August 14, 2018, the Better Local Government Act, 2018, came into force, reducing the number of wards from 47 to 25.
The City and two groups of private individuals challenged the constitutionality of the Act and applied for orders restoring the 47‑ward structure. The application judge found that the Act limited the municipal candidates’ right to freedom of expression under s. 2(b) of the Charter and municipal voters’ s. 2(b) right to effective representation. He held that these limits could not be justified under s. 1 of the Charter and set aside the impugned provisions of the Act. Ontario appealed and moved to stay the judgment pending appeal. The Court of Appeal granted the stay and, on October 22, 2018, the municipal election proceeded on the basis of the 25‑ward structure created by the Act. The Court of Appeal later allowed the appeal, finding no limit on freedom of expression. The majority held that the City had advanced a positive rights claim, which was not properly grounded in s. 2(b) of the Charter, and concluded that the application judge had erred in finding that the Act substantially interfered with the candidates’ freedom of expression and in finding that the right to effective representation applies to municipal elections and bears any influence over the s. 2(b) analysis. The majority also held that unwritten constitutional principles do not confer upon the judiciary power to invalidate legislation that does not otherwise infringe the Charter, nor do they limit provincial legislative authority over municipal institutions.
Held (Abella, Karakatsanis, Martin and Kasirer JJ. dissenting): The appeal should be dismissed.
Per Wagner C.J. and Moldaver, Côté, Brown and Rowe JJ.: Ontario acted constitutionally. The Act imposed no limit on freedom of expression. Further, unwritten constitutional principles cannot be used as bases for invalidating legislation, nor can the unwritten constitutional principle of democracy 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.
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. Section 2(b) of the Charter, which provides that everyone has the fundamental freedoms of thought, belief, opinion and expression, including freedom of the press and other media of communication, has been interpreted as generally imposing a negative obligation rather than a positive obligation of protection or assistance. A claim is properly characterized as negative where the claimant seeks freedom from government legislation or action suppressing an expressive activity in which people would otherwise be free to engage. Such claims of right under s. 2(b) are considered under the framework established in Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927.
However, as explained in Baier v. Alberta, 2007 SCC 31, [2007] 2 S.C.R. 673, s. 2(b) may, in certain circumstances, impose positive obligations on the government to facilitate expression. Many constitutional rights have both positive and negative dimensions and this is so for s. 2(b). Central to whether s. 2(b) has been limited is, therefore, the appropriate characterization of the claim as between a negative and positive claim of right.
In the context of positive claims under s. 2(b), where a claimant seeks to impose an obligation on the government (or legislature) to provide access to a particular statutory or regulatory platform for expression, the applicable framework is that of Baier. As held in Baier, to succeed, a positive claim must satisfy the following three factors first set forth in Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016: (1) the claim should be grounded in freedom of expression, rather than in access to a particular statutory regime; (2) the claimant must demonstrate 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; and (3) the government must be responsible for the inability to exercise the fundamental freedom. These factors set an elevated threshold for positive claims and can usefully be distilled to a single core 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? This single question, a salutary clarification of the Baier test, emphasizes the elevated threshold in the second Dunmore factor while encompassing the considerations of the first and third factors. 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. 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.
In the present case, the City has not established a limit on s. 2(b). The City’s claim is a claim for access to a particular statutory platform, and is thus, in substance, a positive claim. The Baier framework therefore applies, and the City had to show that the Act radically frustrated the expression of election participants such that meaningful expression was effectively precluded. The candidates and their supporters had 69 days to re‑orient their messages and freely express themselves according to the new ward structure. The Act imposed no restrictions on the content or meaning of the messages that participants could convey. Many of the challengers who continued to campaign ultimately had successful campaigns, raising significant amounts of money and receiving significant numbers of votes. This would not have been possible had their s. 2(b) rights been so radically frustrated so as to effectively preclude meaningful expression. Some of the candidates’ prior expression may have lost its relevance, but something more than diminished effectiveness is required under the Baier framework. In the context of a positive claim, only extreme government action that extinguishes the effectiveness of expression may rise to the level of a substantial interference with freedom of expression. Section 2(b) is not a guarantee of the effectiveness or continued relevance of a message, or that campaign materials otherwise retain their usefulness throughout the campaign.
Furthermore, the unwritten constitutional principle of democracy cannot be used as a device for invalidating otherwise valid provincial legislation such as the impugned provisions of the Act. Unwritten 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. 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. In practical terms, unwritten constitutional principles may assist courts in only two distinct but related ways.
First, they may be used in the interpretation of constitutional provisions. 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. When applied to Charter rights, unwritten principles assist with purposive interpretation, informing the character and the larger objects of the Charter itself, the language chosen to articulate the specific right or freedom, and the historical origins of the concepts enshrined. Where unwritten constitutional principles are used as interpretive aids, their substantive legal force must arise by necessary implication from the Constitution’s text. 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. Structural doctrines can fill gaps and address important questions on which the text of the Constitution is silent.
Neither of these functions support the application of unwritten constitutional principles as an independent basis for invalidating legislation. On the contrary, unwritten constitutional principles, such as democracy, a principle by which the Constitution is to be understood and interpreted, strongly favour upholding the validity of legislation that conforms to the text of the Constitution. 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. This plenary jurisdiction is unrestricted by any constitutional principle.
As for s. 3 of the Charter, it guarantees citizens the right to vote and run for office in provincial and federal elections, and includes a right to effective representation. The text of s. 3 makes clear, however, that it does not extend to municipal elections. 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 also cannot be made relevant to the current case by using the democratic principle. Section 3 democratic rights were not extended to candidates or electors to municipal councils. The absence of municipalities in the constitutional text is not a gap to be addressed judicially; rather, it is a deliberate omission. The text of the Constitution makes clear that municipal institutions lack constitutional status, leaving no open question of constitutional interpretation to be addressed and, accordingly, no role to be played by the unwritten principles.
Per Abella, Karakatsanis, Martin and Kasirer JJ. (dissenting): The appeal should be allowed and the application judge’s declaration that the timing of the Act unjustifiably infringed s. 2(b) of the Charter restored. Changing the municipal wards in the middle of an ongoing municipal election was unconstitutional.
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 s. 2(b) of the Charter. The right to disseminate and receive information connected with elections has long been recognized as integral to the democratic principles underlying freedom of expression, and as a result, has attracted robust protection.
A stable election period is crucial to electoral fairness and meaningful political discourse. As such, state interference with individual and collective political expression in the context of an election strikes at the heart of the democratic values that freedom of expression seeks to protect, including participation in social and political decision‑making.
A two‑part test for adjudicating freedom of expression claims was established in Irwin Toy. The first asks whether the activity is within the sphere of conduct protected by freedom of expression. If the activity conveys or attempts to convey a meaning, it has expressive content and prima facie falls within the scope of the guarantee. The second asks whether the government action, in purpose or effect, interfered with freedom of expression.
The legal framework set out in Baier, which was designed to address under inclusive statutory regimes, only applies to claims placing an obligation on government to provide individuals with a particular platform for expression. Claims of government interference with expressive rights that attach to an electoral process are the kind of claims governed by the Irwin Toy framework.
The distinction between positive and negative rights is an unhelpful lens for adjudicating Charter claims. All rights have positive dimensions since they exist within, and are enforced by, a positive state apparatus. They also have negative dimensions because they sometimes require the state not to intervene. A unified purposive approach has been adopted to rights claims, whether the claim is about freedom from government interference in order to exercise a right, or the right to governmental action in order to get access to it. The threshold does not vary with the nature of the claim to a right. Each right has its own definitional scope and is subject to the proportionality analysis under s. 1 of the Charter. There is therefore no reason to superimpose onto the constitutional structure the additional hurdle of dividing rights into positive and negative ones for analytic purposes.
In the present case, the s. 2(b) claim is about government interference with the expressive rights that attach to the electoral process and it is precisely the kind of claim that is governed by the Irwin Toy framework. Applying that framework, it is clear that the timing of the legislation, by interfering with political discourse in the middle of an election, violated s. 2(b) of the Charter. By radically redrawing electoral boundaries during an active election that was almost two‑thirds complete, the legislation interfered with the rights of all participants in the electoral process to engage in meaningful reciprocal political discourse. The Act eradicated nearly half of the active election campaigns, and required candidates to file a change of ward notification form to continue in the race. The redrawing of ward boundaries meant that candidates needed to reach new voters with new priorities. Voters who had received campaign information, learned about candidates’ mandates and engaged with them based on the 47‑ward structure had their democratic participation put into abeyance. The timing of the Act breathed instability into the election, undermining the ability of candidates and voters in their wards to meaningfully discuss and inform one another of their views on matters of local concern.
The limitation on s. 2(b) rights in this case was the timing of the legislative changes. Ontario offered no explanation, let alone a pressing and substantial one, for why the changes were made in the middle of an ongoing election. In the absence of any evidence or explanation for the timing of the Act, no pressing and substantial objective exists for this limitation and it cannot, therefore, be justified in a free and democratic society.
As for the role of unwritten constitutional principles, there is disagreement with the majority’s observations circumscribing their scope and power in a way that reads down the Court’s binding jurisprudence. Unwritten constitutional principles may be used to invalidate legislation. The precedential Constitution of the United Kingdom is not a written document, but is comprised of unwritten norms, Acts of Parliament, Crown prerogative, conventions, custom of Parliament, and judicial decisions, among other sources. Canada’s Constitution, as a result, embraces unwritten as well as written rules. Unwritten constitutional principles have been held to be the lifeblood of the Constitution and the vital unstated assumptions upon which the text is based. They are not merely “context” or “backdrop” to the text. On the contrary, they are the Constitution’s most basic normative commitments from which specific textual provisions derive. The specific written provisions are elaborations of the underlying, unwritten, and organizing principles found in the preamble to the Constitution Act, 1867. Constitutional text emanates from underlying principles, but it will not always be exhaustive of those principles.
Apart from written provisions of the Constitution, principles deriving from the Constitution’s basic structure may constrain government action. Those principles exist independently of and, as in the case of implied fundamental rights before the promulgation of the Charter, prior to the enactment of express constitutional provisions. The legislative bodies in Canada must conform to these basic structural imperatives and can in no way override them. Accordingly, unwritten principles may be used to invalidate legislation if a case arises where legislation elides the reach of any express constitutional provision but is fundamentally at odds with the Constitution’s internal architecture or basic constitutional structure. This would undoubtedly be a rare case; however, to foreclose the possibility that unwritten principles can be used to invalidate legislation in all circumstances is imprudent. It not only contradicts the Court’s jurisprudence, it is fundamentally inconsistent with the case law confirming that unwritten constitutional principles can be used to review legislation for constitutional compliance. Reviewing legislation for constitutional compliance means upholding, revising or rejecting it.
Unwritten constitutional principles are the foundational organizing principles of the Constitution and have full legal force. They serve to give effect to the structure of the Constitution and function as independent bases upon which to attack the validity of legislation since they have the same legal status as the text. Unwritten constitutional principles not only give meaning and effect to constitutional text and inform the language chosen to articulate the specific right or freedom, they assist in developing an evolutionary understanding of the rights and freedoms guaranteed in the Constitution, which have long been described as a living tree capable of growth and expansion. Unwritten constitutional principles are a key part of what makes the tree grow. They are also substantive legal rules in their own right. In appropriate cases, they may well continue to serve, as they have done in the past, as the basis for declaring legislation unconstitutional.
Cases Cited
By Wagner C.J. and Brown J.
Applied: Baier v. Alberta, 2007 SCC 31, [2007] 2 S.C.R. 673; distinguished: Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; considered: Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3; Reference re Secession of Quebec, [1998] 2 S.C.R. 217; British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473; Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, [2014] 3 S.C.R. 31; Babcock v. Canada (Attorney General), 2002 SCC 57, [2002] 3 S.C.R. 3; referred to: Public School Boards’ Assn. of Alberta v. Alberta (Attorney General), 2000 SCC 45, [2000] 2 S.C.R. 409; Ontario English Catholic Teachers’ Assn. v. Ontario (Attorney General), 2001 SCC 15, [2001] 1 S.C.R. 470; Ontario Public School Boards’ Assn. v. Ontario (Attorney General) (1997), 151 D.L.R. (4th) 346; East York (Borough) v. Ontario (1997), 36 O.R. (3d) 733; Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016; Quebec (Attorney General) v. 9147‑0732 Québec inc., 2020 SCC 32, [2020] 3 S.C.R. 426; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; Montréal (City) v. 2952‑1366 Québec Inc., 2005 SCC 62, [2005] 3 S.C.R. 141; Haig v. Canada, [1993] 2 S.C.R. 995; Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component, 2009 SCC 31, [2009] 2 S.C.R. 295; Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3; Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, [2015] 1 S.C.R. 3; Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23, [2010] 1 S.C.R. 815; Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827; Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569; Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877; Reference re Prov. Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158; Reference re Resolution to Amend the Constitution, [1981] 1 S.C.R. 753; MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725; R. (on the application of Miller) v. Prime Minister, [2019] UKSC 41, [2020] A.C. 373; OPSEU v. Ontario (Attorney General), [1987] 2 S.C.R. 2; R. v. Poulin, 2019 SCC 47; Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077; Hunt v. T&N plc, [1993] 4 S.C.R. 289; Huson v. The Township of South Norwich (1895), 24 S.C.R. 145; Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721; Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511; Guerin v. The Queen, [1984] 2 S.C.R. 335; Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214; Reference re Alberta Statutes, [1938] S.C.R. 100; Switzman v. Elbling, [1957] S.C.R. 285.
By Abella J. (dissenting)
Di Ciano v. Toronto (City), 2017 CanLII 85757; Natale v. City of Toronto, 2018 ONSC 1475, 1 O.M.T.R. 349; Godbout v. Longueuil (City), [1997] 3 S.C.R. 844; Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5; United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City), 2004 SCC 19, [2004] 1 S.C.R. 485; 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town), 2001 SCC 40, [2001] 2 S.C.R. 241; Nanaimo (City) v. Rascal Trucking Ltd., 2000 SCC 13, [2000] 1 S.C.R. 342; Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231; Reference re Alberta Statutes, [1938] S.C.R. 100; Switzman v. Elbling, [1957] S.C.R. 285; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; R. v. Keegstra, [1990] 3 S.C.R. 697; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877; R. v. Bryan, 2007 SCC 12, [2007] 1 S.C.R. 527; R. v. Butler, [1992] 1 S.C.R. 452; Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, [2000] 2 S.C.R. 1120; Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component, 2009 SCC 31, [2009] 2 S.C.R. 295; Devine v. Quebec (Attorney General), [1988] 2 S.C.R. 790; Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139; Ramsden v. Peterborough (City), [1993] 2 S.C.R. 1084; Montréal (City) v. 2952‑1366 Québec Inc., 2005 SCC 62, [2005] 3 S.C.R. 141; Haig v. Canada, [1993] 2 S.C.R. 995; Native Women’s Assn. of Canada v. Canada, [1994] 3 S.C.R. 627; Baier v. Alberta, 2007 SCC 31, [2007] 2 S.C.R. 673; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; RJR‑MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; Canada (Attorney General) v. JTI‑Macdonald Corp., 2007 SCC 30, [2007] 2 S.C.R. 610; Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569; Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332; Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23, [2010] 1 S.C.R. 815; Kleindienst v. Mandel, 408 U.S. 753 (1972); B.C. Freedom of Information and Privacy Association v. British Columbia (Attorney General), 2017 SCC 6, [2017] 1 S.C.R. 93; Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989; Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, [2015] 1 S.C.R. 3; Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016; Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391; Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331; R. v. Morgentaler, [1988] 1 S.C.R. 30; Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; Vriend v. Alberta, [1998] 1 S.C.R. 493; Fraser v. Canada (Attorney General), 2020 SCC 28, [2020] 3 S.C.R. 113; Reference re Prov. Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158; Reference re Secession of Quebec, [1998] 2 S.C.R. 217; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3; R. (on the application of Miller) v. Prime Minister, [2019] UKSC 41, [2020] A.C. 373; R. (on the application of Jackson) v. Attorney General, [2005] UKHL 56, [2006] 1 A.C. 262; R. (Privacy International) v. Investigatory Powers Tribunal, [2019] UKSC 22, [2020] A.C. 491; AXA General Insurance Ltd. v. HM Advocate, [2011] UKSC 46, [2012] 1 A.C. 868; Brandy v. Human Rights and Equal Opportunity Commission (1995), 183 C.L.R. 245; Kable v. Director of Public Prosecutions (NSW) (1996), 189 C.L.R. 51; Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997), 190 C.L.R. 410; Lange v. Australian Broadcasting Corporation (1997), 189 C.L.R. 520; Roach v. Electoral Commissioner, [2007] HCA 43, 233 C.L.R. 162; South African Association of Personal Injury Lawyers v. Heath, [2000] ZACC 22, 2001 (1) S.A. 883; Fedsure Life Assurance Ltd. v. Greater Johannesburg Transitional Metropolitan Council, [1998] ZACC 17, 1999 (1) S.A. 374; Elfes Case, BVerfG, 1 BvR 253/56, Decision of January 16, 1957 (Germany); Kesavananda v. State of Kerala, A.I.R. 1973 S.C. 1461; New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319; OPSEU v. Ontario (Attorney General), [1987] 2 S.C.R. 2; Reference re Resolution to Amend the Constitution, [1981] 1 S.C.R. 753; Babcock v. Canada (Attorney General), 2002 SCC 57, [2002] 3 S.C.R. 3; Attorney‑General for Canada v. Attorney‑General for Ontario, [1937] A.C. 326; Attorney General of Nova Scotia v. Attorney General of Canada, [1951] S.C.R. 31; Reference re Authority of Parliament in relation to the Upper House, [1980] 1 S.C.R. 54; Roncarelli v. Duplessis, [1959] S.C.R. 121; B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65; References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, [2021] 1 S.C.R. 175; Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 S.C.R. 103; Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511; Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721; Ontario (Attorney General) v. G, 2020 SCC 38, [2020] 3 S.C.R. 629; MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725; Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, [2014] 3 S.C.R. 31; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Edwards v. Attorney‑General for Canada, [1930] A.C. 124; British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473.
Statutes and Regulations Cited
Better Local Government Act, 2018, S.O. 2018, c. 11, Sch. 3, s. 1.
By‑law to amend By‑law 267‑2017, being a by‑law to re‑divide the City of Toronto’s Ward Boundaries, to correct certain minor errors, City of Toronto By‑law No. 464-2017, April 28, 2017.
By‑law to re‑divide the City of Toronto’s Ward Boundaries, City of Toronto By‑law No. 267‑2017, March 29, 2017.
Canadian Charter of Rights and Freedoms, ss. 1, 2(b), (d), 3, 7, 15, 33.
City of Toronto Act, 2006, S.O. 2006, c. 11, Sch. A, s. 128(1).
Constitution Act, 1867, preamble, ss. 91, 92.
Constitution Act, 1982, preamble, s. 52.
Human Rights Act 1998 (U.K.), 1998, c. 42, s. 4.
Magna Carta (1215).
Municipal Elections Act, 1996, S.O. 1996, c. 32, Sch., s. 10.1(8).
Treaties and Other International Instruments
Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221.
Authors Cited
Bhagwat, Ashutosh, and James Weinstein. “Freedom of Expression and Democracy”, in Adrienne Stone and Frederick Schauer, eds., The Oxford Handbook of Freedom of Speech. Oxford: Oxford University Press, 2021, 82.
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APPEAL from a judgment of the Ontario Court of Appeal (MacPherson, Tulloch, Miller, Nordheimer and Harvison Young JJ.A.), 2019 ONCA 732, 146 O.R. (3d) 705, 439 D.L.R. (4th) 292, 442 C.R.R. (2d) 348, 92 M.P.L.R. (5th) 1, [2019] O.J. No. 4741 (QL), 2019 CarswellOnt 14847 (WL Can.), setting aside a decision of Belobaba J., 2018 ONSC 5151, 142 O.R. (3d) 336, 416 C.R.R. (2d) 132, 80 M.P.L.R. (5th) 1, [2018] O.J. No. 4596 (QL), 2018 CarswellOnt 14928 (WL Can.). Appeal dismissed, Abella, Karakatsanis, Martin and Kasirer JJ. dissenting.
Glenn K. L. Chu and Diana W. Dimmer, for the appellant.
Robin K. Basu and Yashoda Ranganathan, for the respondent.
Michael H. Morris, for the intervener the Attorney General of Canada.
Mark Witten, for the intervener the Attorney General of British Columbia.
Paul Koven, for the intervener the Toronto District School Board.
Selwyn A. Pieters, for the intervener the Cityplace Residents’ Association.
Adam Goldenberg, for the intervener the Canadian Constitution Foundation.
Guy Régimbald, for the intervener the International Commission of Jurists (Canada).
Stéphane Émard‑Chabot, for the intervener the Federation of Canadian Municipalities.
Omar Ha‑Redeye, for the intervener the Durham Community Legal Clinic.
Jamie Cameron, for the intervener the Centre for Free Expression at Ryerson University.
Geetha Philipupillai, for the intervener the Canadian Civil Liberties Association.
Christine Davies, for the interveners Art Eggleton, Barbara Hall, David Miller and John Sewell.
Alexi N. Wood, for the intervener the David Asper Centre for Constitutional Rights.
Donald K. Eady, for the intervener Progress Toronto.
Jason Madden, for the interveners the Métis Nation of Ontario and the Métis Nation of Alberta.
Nicolas M. Rouleau, for the intervener Fair Voting British Columbia.
The judgment of Wagner C.J. and Moldaver, Côté, Brown and Rowe JJ. was delivered by
The Chief Justice and Brown J. —
TABLE OF CONTENTS
Paragraph
I. Introduction
1
II. Background
6
III. Issues
13
IV. Analysis
14
A. Freedom of Expression
14
(1) Principles of Charter Interpretation in the Context of Section 2(b)
14
(2) The Baier Framework
22
(3) Application
29
(a) Nature of the Claim
29
(b) Application of Baier
36
(c) Effective Representation
44
B. Democracy
48
(1) Interpretive and Gap‑Filling Roles of Unwritten Constitutional Principles
49
(a) The Provincial Court Judges Reference
64
(b) The Secession Reference
67
(c) Babcock and Imperial Tobacco
70
(d) Trial Lawyers Association of British Columbia
74
(2) Relevance of the Democratic Principle to Municipal Elec