By Kate No
On August 14, 2018, the Government of Ontario, now under the new Doug Ford administration, passed the Better Local Government Act (“Bill 5”), which amends the Municipal Elections Act, 1996, the Municipal Act, 2001, and the City of Toronto Act, 2006. Among many changes outlined in the Bill, the one that garnered the public’s attention was the reduction in the number of wards from 47 to 25. This radical re-drawing of the number of Toronto’s electoral districts took place at an unprecedented timing in Canadian history: in the middle of the 2018 Toronto Municipal Election. Not surprisingly, the City of Toronto challenged the validity of Bill 5 and the Ontario Superior Court of Justice found the case for the city. In less than two weeks, however, the highest court of Ontario overturned the lower court decision and restored the new 25-ward system for the municipal election.
The central issue was whether Section 2(b) of the Canadian Charter of Rights and Freedoms (“Charter”) was infringed, and, if so, whether the infringement was saved under Section 1 as a demonstrably justified limit in a free and democratic society. The reasoning in Justice Belobaba’s decision was twofold: Bill 5 violated the freedom of expression under Section 2(b) of both the candidates and the voters of the concerned municipal election. Rather curiously, the Court of Appeal dedicated most of its analysis in addressing the candidates’ rights to freedom of expression; it merely brushed on the voters’ rights to freedom of expression. In fact, the court failed to respond to the strongest point advanced by Justice Belobaba: the importance of effective representation with its origin in the very founding of the Charter. By overlooking what may have been the City’s strongest argument, the Court of Appeal left unanswered the question of whether effective representation is guaranteed at all levels of government.
Breach of the candidates’ rights to freedom of expression
In the trial court decision, Justice Belobaba recognizes that the significant change in the number of wards in the middle of an election period “severely frustrated and disrupted” the candidates’ efforts to convey their message to the voters. The candidates would be forced to clarify the changes in the election and address the confusion of the voters instead of explaining their platforms and delivering their political message. Furthermore, this adjustment would call for an overhaul of their previous political platform. In order to re-organize their platform to best accommodate this new electoral system, the candidates must dedicate additional time and effort to devise new strategies and attract additional financial support. Faced with preparatory and administrative tasks in the midst of their campaigns, the candidates would experience heightened difficulty in advancing their agenda, let alone staying in the race.
The Court of Appeal declares that unfairness alone does not suffice; to constitute a Charter breach, the Bill must be unconstitutional. While the change may have been unfair by rendering it more difficult for the candidates to deliver their platforms fully and effectively, the court finds that the change did not impede them from saying what they want. Bill 5 “has the effect of diminishing the effectiveness of the message”; however, it would be unreasonable to claim that the purpose and effect behind the legislation is to limit speech. Furthermore, the court denies that a legislation that makes candidates’ communication “less effective at achieving their desired result” violated Section 2(b) right.
Breach of the voters’ right to freedom of expression
At the onset of his analysis, Justice Belobaba lays out three propositions: the right to vote is “the most fundamental of our rights in a democratic society” as democracy cannot exist absence the right to vote; voting is “the most important expressive activity” and is guaranteed under Section 2(b) of the Charter; the right to vote is essentially “the right to ‘effective representation’ and not just voter parity.” The right to vote, he states, must be accommodated in a way that allows for effective representation. Recognizing the uncertainty as to whether effective representation in the context of Section 3 of the Charter applies to the municipal voter’s rights to vote, Justice Belobaba turns to the early debates of Canada’s founding fathers to indicate that the value of effective representation is not limited to the context of Section 3, but it goes to the “appropriate design of electoral districts.” In other words, effective representation is relevant to any Charter rights that guarantee electoral fairness, despite the scope of Section 3 that fails to embrace municipal election.
Even if effective representation has its sole origin in Section 3, the close relationship between the rights enshrined in Section 3 and the freedom of expression warrants the value in informing other related Charter provisions. Citing that Charter rights cannot be pigeonholed, Justice Belobaba emphasizes that Section 3 must be allowed to overlap, especially if the issue concerns an activity so fundamental to a democratic society. Furthermore, even though Section 2(b) does not specifically guarantee the right to vote in municipal elections, if the provincial government endowed its people with such expressive activity, then the right provided “must be consistent with and not in breach of the Constitution.”
The response by the Court of Appeal is terse. It dismisses the lower court’s analysis by emphasizing that Section 3 does not apply to municipal elections, and that the rights enshrined in Section 3 cannot be imported to Section 2(b) to expand the right to freedom of expression. The single paragraph that canvasses the voter’s right to freedom of expression seems to merely underscore the doctrine of stare decisis. Nowhere can the reader find any discussion on the rationale behind keeping Section 2(b) and Section 3 distinct in the context of municipal voter’s rights to vote, or the root of effective representation in informing other related Charter provisions. Given the importance of the issue at hand, the haste dismissal and lack of proper reasoning by the appellate court is puzzling.
The most apparent concern in insulating Section 2(b) from effective representation in light of municipal election is the constitutional inconsistency in safeguarding democracy. It seems arbitrary that the right to vote, highlighted by the Supreme Court of Canada as “the most fundamental of our rights in a democratic society,” is accommodated to allow effective representation in one level of government but not the other. This dissonance in the underpinnings may have the effect of eroding the value of democracy that the Charter is vehemently protecting. Although it would be premature to conclude that this uncertainty will prompt other municipal elections to exploit the loophole as an electoral strategy, there is certainly the possibility of witnessing similar electoral changes that amount to the level equivalent to one seen in Toronto’s municipal election this year.
With the question of effective representation in municipal election still lingering, should the public still thank the Court of Appeal from precluding the constitutional crisis that may have arisen had Doug Ford invoked the Notwithstanding Clause?
 Bill 5, An Act to amend the City of Toronto Act, 2006, the Municipal Act, 2001, and the Municipal Elections Act, 1996, 1st Sess, 42nd Leg, Ontario, 2018 (assented to 14 August 2018), SO 2018, c 11.
 Ibid, s 128.
 City of Toronto et al v Ontario (Attorney General), 2018 ONSC 5151 [City of Toronto Sup Ct].
 City of Toronto et al v. Ontario (Attorney General), 2018 ONCA 761 [City of Toronto CA].
 City of Toronto Sup Ct, supra note 3 at para 31
 Ibid at para 30.
 Ibid at para 31.
 City of Toronto CA, supra note 4 at para 11.
 Ibid at para 13.
 Ibid at para 16.
 City of Toronto Sup Ct, supra note 3 at para 40.
 Reference Re Provincial Electoral Boundaries,  2 SCR 158 at para 70 [Re Provincial Electoral Boundaries].
 Ibid at para 71.
 Haig v R,  2 SCR 995 at para 155 [Haig].
 City of Toronto Sup Ct, supra note 3 at para 40.
 Ibid at para 47.
 Ibid at para 45; Re Provincial Electoral Boundaries, supra note 14 at para 28.
 City of Toronto Sup Ct, supra note 3 at para 46.
 Ibid at para 47.
 Ibid at para 49; Haig, supra note 16 at para 82.
 City of Toronto CA, supra note 4 at para 17.