OTTAWA: The Canadian Constitution Foundation (CCF) is in the Supreme Court of Canada today, March 16, making arguments about the court battle over the size of Toronto city council. The case arises out of the 2018 decision by the Ontario government to reduce the size of Toronto city council during that year’s municipal election.
The lower court struck down the law shrinking the size of city council, holding that it was an unjustified limit on the Charter guaranteed right to freedom of expression. The Court of Appeal stayed that decision, which allowed the election to proceed with the new, smaller Council, and ultimately overturned the lower court’s decision and upheld the legislation. The Supreme Court will now consider whether the legislation is valid.
“This is an important case because the Court is being asked to decide what freedom of expression protects, and what it doesn’t protect, in the electoral context” said CCF Litigation Director, Christine Van Geyn. “But more than that, this case matters because the court needs to insist on a disciplined approach to interpreting the Charter, so that Canadians’ civil liberties can be more clearly defined and thus more rigorously protected by the courts.”
The CCF will argue that section 3 of the Charter protects participation in provincial and federal elections, and that municipal elections were intentionally left out of this right when the Charter was drafted. “Municipal elections were not given section 3 protection when the Charter was drafted. Courts cannot now find special protections for participating in municipal elections in another right, like freedom of expression, without diluting that right and making important freedoms more difficult to protect in future cases,” continued Van Geyn.
The CCF will also argue that the Court cannot rely on “unwritten constitutional principles” to find that the law shrinking city council is invalid. “Unwritten constitutional principles are not ‘provisions of the constitution’, and can neither extend the reach of written constitutional provisions nor expand the judicial power to strike down duly enacted legislation,” concluded Van Geyn.
The CCF is represented in this case by lawyers Adam Goldenberg and Jacob Klugsberg of McCarthy Tétrault LLP. The public and media can watch the hearing live HERE, starting at 9:30 am.