Express yourself: Supreme Court of Canada rules Ontario’s reduction of Toronto’s wards did not violate freedom of expression

Shortly after the 2018 provincial election, the Ontario legislature restructured Toronto’s municipal governance. Even though the municipal election campaign had already started, the Better Local Government Act, 2018¹ reduced the number of Toronto’s wards (and therefore its city councilors) from 47 to 25. In a 5-4 decision, the Supreme Court of Canada rejected Toronto’s arguments that the change effected by the Act infringed freedom of expression guaranteed by section 2(b) of the Canadian Charter of Rights and Freedoms,² or that it could be invalidated on the basis of the unwritten constitutional principle of democracy. Rather, the majority concluded that, whatever the merits of Ontario’s decision to pass the Act may be, it was a valid exercise of section 92(8) of the Constitution Act, 1867,³ which gives provinces exclusive jurisdiction over “municipal institutions” (e.g. towns and cities) within their borders.

What you need to know

• Freedom of expression claims can be characterized as either “negative” (requiring the government to refrain from interfering with expressive activity) or “positive” (requiring the government to support expressive activity). Positive claims require the claimant to show that the government has, in purpose or effect, substantially interfered with freedom of expression by denying access to a specific platform for expression. The majority concluded that Toronto’s claim was a positive claim, but that it had not established substantial interference, since the candidates had 69 days in the election campaign to express themselves and their messages under the new ward structure.
• Unwritten constitutional principles (such as democracy or the rule of law) cannot be used as standalone bases to invalidate legislation. Courts may use unwritten principles to aid in the interpretation of the Constitution’s written text and to develop structural doctrines that can fill gaps and address questions on which the Constitution is silent. As a result, Toronto could not rely on unwritten principles to invalidate the Better Local Government Act.
• Four justices dissented. They rejected the majority’s distinction between positive and negative claims, and would have found that the Better Local Government Act interfered with the rights of all participants in the electoral process to engage in “meaningful reciprocal political discourse.” The dissent emphasized that it was the timing, rather than the substance, of the changes to Toronto’s ward structure that was the problem.
• The dissent also concluded that unwritten constitutional principles can be used to invalidate legislation.

Background

The Better Local Government Act, 2018

The Toronto municipal election campaign began on May 1, 2018, based on Toronto’s 47-ward structure. On August 14, the Ontario government passed and brought into force the Better Local Government Act, 2018, reducing the number of wards (and the corresponding seats on Toronto City Council) from 47 to 25.

Toronto and two groups of private individuals brought urgent applications challenging the constitutionality of the Act. The applicants argued that the Act violated the freedom of expression, freedom of association, and equality rights guaranteed by sections 2(b), (d) and 15(1). The applicants also argued that the Act was inconsistent with the unwritten constitutional principles of democracy and the rule of law. Section 3 – which guarantees democratic rights – was not available, as it only applies with respect to provincial legislatures and Parliament.

Lower court decisions: the election proceeds with 25 wards

The applicants were successful at the trial court level, where the judge purported to strike down the Better Local Government Act. But the Court of Appeal for Ontario granted a stay, making the unusual holding that there was a “strong likelihood” that the application judge erred, and that Ontario’s appeal would succeed. The election proceeded on October 22 with 25 wards.

Ontario’s appeal was fully argued in the spring of 2019 and was decided in September of that year. By this point, all applicants except Toronto had settled with Ontario. In a 3-2 decision, the Court of Appeal overturned the application judge, finding that the Act imposed no limit on freedom of expression and could not be invalidated on any other basis.

The Supreme Court’s decision: the Act is valid

In a narrow 5-4 decision, the Supreme Court concluded that the Act was constitutionally valid. Both the majority (written by Chief Justice Wagner and Justice Brown) and the dissent (written by Justice Abella) addressed two central issues: (1) Was Toronto’s freedom of expression argument a “negative” or “positive” rights claim (and did this matter)? And (2) could an unwritten constitutional principle, such as democracy, be used to invalidate legislation if it did not offend any specific provision of the Charter?

Negative vs. positive claims for freedom of expression

The majority’s section 2(b) analysis started by explaining that most free expression claims are “negative,” not “positive” claims. Negative claims ask the courts to restrain the government from interfering with free expression (for example, when the government enacts laws criminalizing certain types of speech). Positive claims ask the courts to oblige the government to take certain steps to facilitate expression, such as giving someone a platform to speak. This distinction is important. A party making a negative claim need only establish that they were engaging in expressive activity and the purpose or effect of the government’s action was to control or interfere with that activity. A party making a positive claim faces a higher burden: it must show that, by denying access to a statutory platform or by otherwise failing to act, the government has, in purpose or effect, substantially interfered with freedom of expression. That only occurs when the claimant’s lack of access to a particular statutory platform effectively precludes meaningful expression. This is a very high bar.

The majority concluded that Toronto was making a positive rights claim by seeking access to a particular statutory platform: the 47-ward structure that existed when the municipal campaign period began. As a result, Toronto was required to show that the absence of this ward structure substantially interfered with freedom of expression. The majority concluded that Toronto had failed to do so, because the change in ward structure did not prevent candidates from continuing to engage in political speech. Candidates and supporters continued to campaign and debate issues. Many had successful campaigns and received a significant number of votes. Although some previous expression (such as campaign material featuring old ward designations) may have lost its relevance, this did not rise to a substantial interference. The majority explained that section 2(b) does not guarantee the continued relevance of a message, only the right to make the message and have it heard.

A limited role for unwritten constitutional principles

Since there was no Charter breach, the majority turned to whether the Act could be invalidated on the basis of unwritten constitutional principles. Toronto argued that, by changing the ward structure, Ontario had disrupted the electoral process, contrary to the unwritten constitutional principle of democracy.

The majority acknowledged that Canada’s Constitution embodies unwritten principles, such as democracy and the rule of law. According to the majority, these unwritten principles can play two major roles: they can be interpretative aids to the Constitution’s written text, or they can be used to develop structural doctrines to fill gaps and address important questions that the text does not answer. However, the majority concluded that unwritten constitutional principles cannot be used to invalidate legislation. Permitting this would amount to the courts amending the Constitution, which is a role reserved for Parliament and the provinces. This, the majority reasoned, was particularly true in the present case, since section 92(8) of the Constitution Act, 1867 gives provinces broad jurisdiction over municipal institutions. The majority also looked to section 3 of the Charter, which provides for democratic rights in federal and provincial, but not municipal, elections. The majority concluded that this was not a gap in the Charter where further rights could be inserted, but rather a deliberate omission.

The dissent: the Act is unconstitutional

The dissent concluded that the Act imposed an unjustified limit on freedom of expression. In their view, there was no need to apply the higher threshold of substantial interference, since this case was not about access to a specific statutory platform, but rather the government hindering expression during an election. The dissent also rejected the distinction between positive and negative Charter claims because all rights have both positive and negative dimensions. The dissent concluded that Ontario had destabilized the election process and had interfered with the ability of candidates and voters to engage in meaningful political discourse. Moreover, Ontario had offered no explanation as to why the timing of the Act was justified for the purposes of section 1 of the Charter.

On the issue of unwritten constitutional principles, the dissent reasoned that they could be used to invalidate legislation where such legislation is “fundamentally at odds” with the Constitution’s basic architecture.

Where do we go from here?

The Supreme Court’s decision likely offers greater stability to the federal and provincial governments in the context of constitutional claims. The circumstances in which section 2(b) will impose positive obligations on the government to facilitate expression appear limited and subject to an exacting standard. Moreover, it seems unlikely that unwritten constitutional principles can be used to invalidate legislation. However, the Supreme Court’s 5-4 split suggests that these issues are not necessarily settled, and with regular turnover on the Supreme Court, this issue may be reconsidered in the future.