TORONTO – The Ontario Court of Appeal (ONCA), in a 3-2 split decision, decided that participation in a municipal election, either as a candidate or as a voter, is not protected as “expressive activity” under section 2(b) of the Charter. In arriving at this decision, the ONCA relied on many of the CCF’s arguments.
Last year, Premier Doug Ford’s government passed legislation that reduced the number of seats on Toronto’s city council from 47 to 25. The legislation was struck down by the Ontario Superior Court of Justice as a violation of the Charter’s guarantee of freedom of expression. That decision was later stayed by the ONCA, which allowed the election to proceed on the basis of the Ford government’s legislation.
The CCF argued that the Constitution’s framers chose to protect participation in federal and provincial, but not municipal, elections in s. 3 of the Charter, and that this choice must inform the proper interpretation of s. 2(b). One Charter guarantee cannot legitimately be used as a vehicle to cloak in constitutional protection that which another Charter guarantee has expressly excluded. Courts must be attentive to the internal limits of Charter rights, and not simply rely on the limitations clause (s. 1) to leave it up to judges to decide subjectively, in every case, whether the government has overstepped. This requires a consistent, disciplined approach to constitutional interpretation.
None of the arguments advanced by the City of Toronto challenging the constitutionality of the Ford government’s legislation succeeded. The majority of the ONCA explained that the City’s complaint was about when the legislation was enacted—i.e. close to the municipal election date—not with any legitimate constitutional issue:
…in reality the [City of Toronto’s] complaint concerns the timing of the legislature’s decision to change the composition of City Council—a change that is undeniably within the legitimate authority of the legislature. The… complaint has been clothed in the language of s. 2(b) of the Charter to invite judicial intervention in what is essentially a political matter. There is no legitimate basis for the court to accept this invitation.
The Court also agreed with the CCF that the City’s position wrongly conflated the voting rights in section 3 with expressive rights in section 2(b). In finding against the City’s arguments, the majority of the Court said:
 … the basic structure of the Charter must be respected. Although the coverage of particular rights can overlap, the content of one right cannot be subsumed by another, or used to inflate its content. The application judge’s… analysis wrongly imports the content of section 3 into section 2(b) in order to circumvent the decision of the constitutional framers not to extend the protection of section 3 to municipal elections.
CCF Executive Director, Joanna Baron, said of yesterday’s decision:
Our intervention in this matter was focused on how courts should approach the hard work of constitutional interpretation. In its decision, a majority of the Court of Appeal decided the case in a manner that ensures respect for the limits of the judicial role in deciding when and how governments may limit Charter rights, as well as an interpretive approach rooted in the text of the Charter itself. We applaud the decision.
Read the original release here.