DIVISION OF POWERS – Provincial jurisdiction – Provincial jurisdiction (Constitutional Act of 1867, s. 92) – Municipal institutions

Appeal by the City of Toronto from a judgment of the Court of Appeal for Ontario which found that the Local Government Improvement Act, 2018, was constitutional. During the City of Toronto’s municipal election campaign, the province of Ontario passed the Local Government Improvement Act, 2018, which reduced the size of Toronto City Council from 47 wards to 25. The city challenged the constitutionality of the law and sought orders restoring the structure of the 47 wards. The trial judge concluded that the Act limited the right of municipal candidates to freedom of expression and the right of municipal electors to effective representation under s. 2 (b) of the Charter. He concluded that 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 judgment. The municipal election was conducted on the basis of the 25-ward structure established by law. The Court of Appeal subsequently allowed Ontario’s appeal, finding no limit to freedom of expression.

DECISION: Appeal dismissed. The province had acted in accordance with the Constitution. The City was asserting a positive rights claim, to which the framework established in Baier v. Alberta applied. The Baier framework sets a high threshold for positive claims, requiring “substantial interference” with freedom of expression. The applicable factors might usefully boil down to a single central question: was the claim based on the fundamental freedom of expression of the Charter, so that, by denying access to a legal platform or by failing to act, the government had either significantly impeded freedom of expression or was intended to impede freedom of expression? The City had not demonstrated a substantial interference with freedom of expression. The change in the structure of neighborhoods did not prevent election participants from expressing themselves more on electoral issues within the framework of the new neighborhood structure. The Act did not impose any limits on freedom of expression and did not violate s. 2 (b) of the Charter. Despite their value as aids of interpretation, unwritten constitutional principles cannot serve as a basis for invalidating a law. There was no independent right to effective representation outside of Art. 3 of the Charter. The unwritten constitutional principle of democracy could not be used to restrict provincial authority under s. 92 (8) of the Constitution Act, 1867 or to read the municipalities in art. 3 of the Charter. Dissenting reasons were provided.

Toronto (City) v. Ontario (Attorney General), [2021] SCJ No. 34, Supreme Court of Canada, Chief Justice R. Wagner and RS Abella, MJ Moldaver, A. Karakatsanis, S. Côté, R. Brown, M. Rowe, SL Martin and Justices N. Kasirer, October 1, 2021 Digest n ° TLD-September272021011-SCC


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Thelma J. Longworth

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